UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Mills 


THE  LAW 

OF 


WORKMEN'S  COMPENSATION 

Rules  of  Procedure,  Tables,  Forms, 
Synopses  of  Acts. 


BY 


WILLIAM  R.  SCHNEIDER,  B.  S.,  LL.  B., 

«»i 

of  The  8t.  Louis  Bar. 


AUTHOR 
Missouri  Workmen's  Compensation  Act,  of  1919. 


VOLUME  I. 


THOMAS  LAW  BOOK  COMPANY 

ST.  Louis,  MISSOIKI. 

1922. 


T 


Copyright  1922 

BY 
WILLIAM    R.    SCHNEIDER, 


TO 

MY  PARENTS 
FREDERICK  AND  AUGUSTA  SCHNEIDER. 


7760.11 


PREFACE. 

In  the  early  part  of  1917  three  general  legal  works  on  the 
subject  of  Workmen's  Compensation  were  published.  Since 
then  thirteen  additional  states  have  enacted  compensation  acts 
and  the  appellate  court  decisions  on  the  subject  have  quadrupled. 

The  writer  has  been  impelled  to  this'  work : 

First:  By  reason  of  the  important  modifications  of  the  gen- 
eral principles  that  have  been  evolved  by  the  numerous  de- 
cisions and  new  legislative  enactments  on  this  subject  in  the 
past  five  years.  Twenty  seven  states  having  amended  their  respec- 
tive compensation  acts  in  1921  alone. 

Second:  Because  in  this  day  "a  case  in  point"  usually  takes 
precedence  over  the  text  writers'  theories  and  deductions. 

Third :  Because  the  original  reports  are  becoming  so  numer- 
ous that  it  is  impossible  for  the  practitioner  to  have  more  than 
a  small  fractional  part  of  them  at  hand. 

Hence  this  effort  to  supply  to  the  practitioner,  in  the  most 
convenient  and  comparatively  inexpensive  form,  these  three 
needs  in  so  far  as  they  relate  to  Workmen's  Compensation  Law. 
This  has  been  attempted  by  mentioning  throughout  the  work 
and  in  the  synopses  of  the  acts,  included  in  the  appendix,  the 
amendments  to  the  acts  themselves,  as  well  as  the  modifications  of 
general  principles  that  have  been  evolved  by  the  decisions.  In  hun- 
dreds of  cases  those  terse  paragraphs  from  the  opinions  have 
been  quoted  which  set  out  the  gist  of  the  facts  and  the  law  of 
the  case,  and  in  a  few  cases  syllabii  prepared  by  the  court  have 
been  quoted. 

It  is  hoped  that  these  numerous  quotations,  together  with  the 
additional  supporting  citations  and  general  subject  matter, 
will  prove  a  desirable  substitute  for  the  original  report,  and 
at  the  same  time  cover  the  particular  point  so  comprehensively 
that  the  practitioner  will  be  able  to  prepare  his  case  with  thor- 
oughness. 


VII 


PREFACE. 

In  view  of  the  varying  phraseology  of  the  provisions  of  so 
many  acts  covering  certain  phases  of  the  subject,  this  work  must 
necessarily,  in  places,  assume  the  nature  of  a  digest  of  de- 
cisions. 

A  careful  effort  has  been  made  to  cite  every  American  appel- 
late 'court  case  on  the  subject  in  support  of  every  point  decided 
in  the  case.  In  addition  many  board  and  commission  decisions 
and  British  and  Canadian  decisions  have  been  cited  and  dis- 
cussed. 

The  writer  takes  th:s  opportunity  to  acknowledge  his  appre- 
ciation of  the  assistance  rendered  in  the  preparation  of  this  work 
by  the  following: 

C.  C.  Hine's  Sons  Company  of  21  Platt  Street,  New  York, 
publishers  of  the  Workmen's  Compensation  Law  Journal,  which 
contains  all  current  appellate  court  compensation  cases,  and  is 
cited  in  this  work  as  W.  C.  L.  J. ;  Mr.  Henry  J.  McMahon,  a 
most  thorough  student  of  the  subject  of  Workmen's  Compen- 
sation; Mr.  C.  P.  Berry,  author  of  Berry  on  Automobiles,  and 
•contributor  of  articles  on  Workmen's  Compensation  to  various 
legal  journals;  Mr.  Clyde  G-ary  and  Mr.  Charles  Wright,  all  oi 
the  St.  Louis  Bar,  and  Mr.  F.  Robertson  Jones  of  New  York 
City. 

WM.  R.  SCHNEIDER. 


vm 


TABLE  OF  CONTENTS 

CHAPTER   I. 

REASONS  FOR,  HISTOBY  OF,  AN  OBJECTIONS  TO,  WORKMEN'S  COMPENSATION 

LAWS. 
Sec. 

1.  Reasons  Underlying  Workmen's  Compensation  Legislation. 

2.  History  of  Workmen's  Compensation  Legislation. 

3.  Objection  of  Opponents  of  Compensation  Laws. 

CHAPTER  II. 

ELECTION,   REJECTION,  AND  CONSTITUTIONALITY  OF  ACTS. 

4.  Elective  and  Compulsory  Acts,  Constitutionality. 

5.  Constitutionality  of  Miscellaneous  Provisions. 

6.  Presumption  of  and   Notice  of  Election   and   Rejection. 

7.  Requirements  as  to  Notice  of  Election. 

8.  Proof  of  Election. 

9.  Effect,  Contractual  Nature  of  Election  and  Duress. 

10.  Election,  When  Exempted  By  Having  Less  Than   Stated  Numbers 

of  Employees. 

11.  Election    By    Farmers,    Employers    of    Domestic    Servants,    Casual 

Employees  And  Outworkers. 

12.  Election  as  To   Part  Only  Of  Employees. 

13.  Election  To  Reject  And  Abolition  Of  Common  Law  Defenses. 
14.     Election  By  Minors  and  Minors  Generally. 

15.  Election  To  Reject  And  Action  For  Damages. 

CHAPTER  III. 

WHO   COMES    UNDER   TUB  ACT. 

16.  General. 

17.  Every  Person,  Corporation,  Association,  etc.,  As  Employers. 

18.  Every  Person,  Corporation,  Association,  etc.,  As  Employers  (Cont'd) 

19.  Employees  Generally. 

20.  Who    Are   Employees. 

21.  Who  Are  Employees  (Cont'd). 

22.  Employment  Through  Agents  And  Assistants. 

IX 


TABLE   OF    CONTENTS. 

CHAPTER  HI.  Con. 

Sec. 

23.  Employee  Doing  Incidental  Work. 

24.  Loaned  Employees. 

25.  Partnership  As  Employer. 

26.  Employers  of  Teamsters. 

27.  Employer  Of  Less  Than  Stated  Number  Of  Employees. 

28.  Regularly  Employed  And  Usual  Business  Of  Employer. 

29.  Casual  Employments  And  Regularly  Employed  In  Unusual  Business 

Of  Employer. 

30.  Employments  Not  Casual. 

31.  Farm  Labor. 

32.  Employments  Held  Not  To  Be  Farm  Labor. 

33.  Domestic  Servants. 

2.4.  Persons  Whose  Average  Annual  Earnings  Exceed  A  Stated  Amount, 
Excluded. 

35.  Officials  Of  Political  Subdivisions. 

36.  Employees  Of  The  State  And  Its  Political  Subdivisions. 

37.  Independent  Contractors. 

38.  Workmen  Held  Independent  Contractors  Not  Employees. 

39.  Workmen  Held  Employees  And   Not  Independent  Contractors. 

40.  Owner  of  Premises  As  Employer  Of  The  Employees  Of  His  Con- 

tractors And  Subcontractors. 

41.  On,  Or  About  the  Premises. 

42.  Liability  of  Owner  Or  Lessor  To  Employees  Of  Lessee. 

43.  Dual  Employers,  Employments,  And   Business  Enterprises. 

44.  Subrogation  And  Third  Persons  As  Affected  By  The  Acts. 

45.  Subrogation  And  Third  Persons  As  Affected  By  The  Acts,  (Cont'd) 

46.  Cases  Exclusively  Covered  By  Federal  Law. 

47.  Extra-Territorial  Application  Of  Acts. 

CHAPTER  IV. 

HAZARDOUS  EMPLOYMENT. 

48.  General  Consideration. 

49.  Incidental  Work  In  Hazardous  Employment. 

50.  Diversified  Employment. 

51.  Away  From  Plant. 

52.  Altering. 

53.  Appliances. 

54.  Bottling. 

55.  Brick  Making. 

56.  Building  Construction,  Repair,  etc. 

57.  Butcher  Shop. 

58.  Cannery. 
x 


TABLE  OP   CONTENTS. 

CHAPTER  IV.   Con. 

Sec. 

59.  Carpenter  Shop. 

60.  Carriers — Carriages. 

61.  Hauling   Incidental   To   Employers   Business. 

62.  Loading  And  Unloading. 

63.  Charitable  Institution. 

64.  Chauffeur   Repairing   Family   Car. 

65.  Coal  Business. 

66.  Collector. 

67.  Commission  Business. 

68.  Construction. 

69.  Dairy. 

70.  Decorating. 

71.  Dredging. 

72.  Driver. 

73.  Drug  Store. 

74.  Elevators. 

75.  Engineering — Lifting  Radiator. 

76.  Engineering  Work. 

77.  Engineering  Works. 

78.  Ensilage  Cutter. 

79.  Enterprise. 

80.  Erection. 

81.  Excavating. 

82.  Explosives,  Etc. 

83.  Factory. 

84.  Farming. 

85.  Florists. 

86.  Garbage  Disposal   Plant. 

87.  Garbage  Removal. 

88.  Groceries,  Wholesale. 

89.  Heating. 

90.  Hoisting  Apparatus — Hand  Elevator. 

91.  Hospital. 

92.  Hotel. 

93.  Ice  Harvesting. 

94.  Installation  Of  Water  Tank. 

95.  Junk  Business. 

96.  Logging. 

97.  Longshore. 

98.  Maintain. 

99.  Manhole  Construction. 

100.  Manufacture. 

101.  Mason  Or  Concrete  Work. 

102.  Meal  Market. 

XI 


TABLE   OF    CONTENTS. 

CHAPTER  IV.   Con. 

Sec. 

103  Miner. 

104.  Moving  Picture. 
(See  Manufacture). 

105.  Mining — Quarrying. 

106.  Night   Watchman. 

107.  Oil  &  Gas  Wells. 

108.  On,  In  or  About. 

109.  Same — Plant— Factory. 

110.  Operation — Engines. 

111.  Pile  Driving. 

112.  Plastering. 
W.3.     Pleasure  Club. 

114.  Power  Machinery. 

115.  Private  Railroad. 

116.  Process  Server. 

117.  Road  Building. 

118.  Salesman. 

119.  Sewer    Construction. 

120.  Slaughter  And   Packing   House. 

121.  Smoke  Stack  Wrecking. 

122.  Stable. 

123.  Storage. 

124.  Street  Railway. 

125.  Structure. 

126.  Subway. 

127.  Threshing  Machine. 

128.  Undertaking. 

129.  Upholstering — Carpet  Laying. 

130.  Vehicles. 

131.  Vessels — Unloading. 

132.  Warehouse. 

133..    Window  Cleaning. 

134.  Determination  Of  Question. 

CHAPTER  V. 
PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT. 

135.  Definitions. 

136.  Abscess. 

137.  Actinomycosis. 

138.  Aggravation  of  Pre-Existing  Condition. 

139.  Aneurism. 

140.  Anthrax. 
XII 


TABLE  OP   CONTENTS. 

CHAPTER   V.    Con. 

Sec. 

141.  Appendicitis. 

142.  Apoplexy. 

143,.  Artery  Rupture. 

144.  Arterio-Sclerosis. 

145.  Artificial  Limb  Broken. 

146.  Artificial  Teeth  Broken. 

147.  Artificial  Eye  Broken. 

148.  Asphyxiation. 

149.  Assaults. 

150.  Asthma. 

151.  Bends. 

152.  Blood  Poison. 

153.  Blood  Vessel  Rupture. 

154.  Boils. 

155.  Brass  Poisoning. 

156.  Brights  Disease. 

157.  Bronchitis. 

158.  Burns. 

159.  Cancer. 

160.  Carbuncle. 

161.  Cellulitis. 

162.  Cerebral  Abscess. 

163.  Cerebral  Hemorrhage. 

164.  Cerebral  Oedma. 

165.  Colds. 

166.  Concussion  Of  Brain. 

167.  Death,  Presumption  From,  While  At  Work. 

168.  Delirious. 

169.  Delirium  Tremens. 

170.  Dementia  Praecox. 

171.  Dermatitis. 

172.  Diabetes. 

173.  Disease  Following  Injury. 

174.  Dislocation. 

175.  Dizziness. 

176.  Dog  Bite. 

177.  Drinking  Acid  Or  Poison  By  Mistake. 

178.  Drowning. 

179.  Dust. 

180.  Dysentery. 

181.  Eczema. 

182.  Embolism.  • 

183.  Epilepsy. 

184.  Erysipelas. 

XIII 


TABLE   OF    CONTENTS. 

CHAPTER  V.    Con. 

Sec. 

185.  Eyesight. 

186.  Eye  Injuries. 

187.  Facial  Paralysis. 

188.  Falls  From  Vertigo  Or  Other  Like  Causes. 

189.  Felon. 

190.  Flat  Foot  From  Traumatism. 

191.  Floating  Kidney. 

192.  Frost  Bites  And  Freezing. 

193.  Friction  Injuries. 

194.  Gangrene  From  Wound. 

195.  Gastric  Ulcer. 

196.  Headaches  From  Eye  Injury  And  Other  Causes. 

197.  Heart  Disease. 

a.  Cases  in  which  Compensation  was  awarded. 

b.  Cases  in  which  Compensation  was  denied. 

198.  Hemorrhage. 

199.  Hemorrhoids. 

200.  Hernia. 

201.  Housemaid's  Knee. 

202.  Hydrocele. 

203.  Hydronephrosis  Of  Kidney. 

204.  Hysterical  Blindness. 

205.  Hysterical  Paralysis. 

206.  Infection. 

207.  Influenza. 

208.  Inhalation  Of  Noxious  Gases. 

209.  Ink  Poisoning. 

210.  Insanity. 

211.  Insect  Bite. 

212.  Ivy  Poisoning. 

213.  Lead  Poisoning. 

214.  Lightning. 

215.  Lumbago. 

216.  Malarial  Fever. 

217.  Meningitis. 

218.  Mental  Shock  Or  Fright  And  Nervous  Trouble. 

219.  Mitral  Regurgitation. 

220.  Myocarditis. 

221.  Myositis. 

222.  Nephritis. 

223.  Occupational    Disease. 

224.  Osteomyelitis. 

225.  Osteosarcoma  From  Fall. 

226.  Over  Work. 
XIV 


TABLE  OP   CONTENTS. 


CHAPTER   V.   Con. 


Sec. 

227.  Palmer  Abscess. 

228.  Paralysis. 

229.  Periartbritls. 

230.  Peritonitis. 

231.  Pleurisy. 

232.  Pneumonia. 

233.  Proof  Of  Accident. 

234.  Proximate  Cause. 

235.  Quarantine. 

236.  Rash. 

237.  Recurrence  of  Condition  Due  To  Former  Injury. 

238.  Rhuematism. 

239.  St.  Vitus  Dance. 

240.  Sarcoma. 

241.  Scarlet  Fever. 

242.  Sciatica. 

243.  Septicaemia. 

244.  Skin  Affections. 

245.  Sleep. 

246.  Source  of  Necessary  Fact. 

247.  Sprains  And  Strains. 

248.  Suicide. 

249.  Sun  Stroke  And  Heat  Stroke. 

250.  Sympathetic  Affection  Of  One  Eye  By  Injury  To  The  Other. 

251.  Testicles;  Injuries  To: 

252.  Tetanus. 

253.  Trachoma. 

254.  Tuberculosis. 

255.  Tumor. 

256.  Typhoid  Fever. 

257.  Ulcers. 

258.  Vaccination. 

259.  Varicoae  Veins. 

260.  Vertigo. 

261.  Wood  Alcohol  .Poisoning. 

CHAPTER  VI. 
ACCIDENTS  ARISING  OUT  OF  AND  m  THE  COURSE  OF  TUB  EMPLOYMENT. 

262.  Arising  Out  of  and  in  the  Course  of  In  General. 

XV 


TABLE   OF    CONTENTS. 

CHAPTER  VI.  Con. 
ACCIDENTS  SUSTAINED  IN  GOING  TO  AND  RBOM  PLACE  OF  EMPLOYMENT. 

Sec. 

263.  Going  To  Work  In  Own  Conveyance. 

264.  Going  From  Work  In  Own  Conveyance. 

265.  Going  To  And  From  Work  In  Conveyances  Furnished  By  Employer. 

266.  While  Walking  To  And  From  Work. 

267.  Going  To  And  From  Work  Using  Conveyances  Of  Third  Parties. 

268.  Going  To  And  From  Work,  On  Premises  Of  Employer  And  While 

Passing  Over  Ways   Of  Egress   And   Ingress. 

269.  Going  To  And  From  Work  Where  Employment  Is  Not  Limited  To 

Fixed  Hours. 

270.  Seamen  And  Others  Employed  On  Vessels  Injured  When  Getting 

On  And  Off  Vessels. 

271.  Away  From  Place  Of  Employment  On  Business  Of  Employer. 

272.  Street  Accidents. 

NON  WORKING  TIME  INJURIES. 

273.  Miscellaneous  Accidents  Before  And  After  Work  Hours. 

274.  During   Temporary     Cessation     Of   Work     At   The     Direction    Of 

Employer  And  For  Own  Purposes. 

275.  Going  To  Report  To  Employer. 

276.  Lunch  Hour  Injuries,  On  The  Premises  And  Going  To  Place  Off 

Premises  For  Luncheon. 

277.  Going  To  Receive  Pay. 

278.  Going  To  Answer  A  Call  Of  Nature. 

279.  Injuries    Sustained   After    Work   Hours,    By   Employees   Furnished 

Lodgings  On  The  Premises  And  To  Employee  Visiting  The 
Premises  On  Sundays  For  Purposes  Not  Connected  With  The 
Employment. 

280.  Away  From  Place  Of  Employment  On  Own  Business  Or  Business 

Other  Than  Employer's. 

281.  Accidents   Under   Contract   But   Before   Beginning     Work,   Before 

Actual  Hiring.   And  After  Discharge. 

EMPLOYEE'S  OB  ANOTHER'S  WILFUL  MISCONDUCT. 

282.  In   General. 

283.  Acts.  Not  Constituting  Wilful   Misconduct. 

284.  Acts  Constituting  Wilful  Misconduct. 

285.  Sportive  Acts. 

286.  Added  Risk  To  Peril. 

287.  Employer's  Wilful  Misconduct. 

288.  Injury   Sustained   While     Performing     Acts     For     Personal   Con- 

veniences or  Pleasure  Of  The  Etaployee. 

289.  Miscellaneous    Accidents    Occurring    Within    "War ,  Zone"    And    In 

Munition  Works  Together  With  Questions  Pertaining  To  Em- 
ployees In  Military  Service,  As  Affected  By  Compensation  Acts. 
XVI 


TABLE  OP    CONTENTS. 
CHAPTER  VI.  Con. 

"AUORAVATTON"   CASES   AS   AFFECTED  BY    THE   DOCTRINE   OP   PBOXIMATE   CAUSE. 

Sec. 

290.  Aggravation   Of  Pre-Exlsting   Condition. 

291.  Aggravation  Of  An  Injury  By  Subsequently  Intervening  Causes. 

292.  Accidents    Occurring1   To    Employees    While    Performing    Acts    For 

The  Master  Other  Than  Those  Within  Their  Particular  Line  Of 
Duty  or  Whose  Conduct  While  Performing  Their  Duties  To  The 
Master  Places  Them  Outside  Of  The  Scope  Of  Their  Employ- 
ment. 

ASSAULTS. 

293.  Resulting   From   Controversies   Connected   With   or    Pertaining  To 

Employment. 

294.  Resulting  From  Controversies  Not  Connected  With  Or  Pertaining 

To  Employment. 

295.  Burden  Of  Proof  To  Show  That  The   Injury  Was  Caused  By  An 

Accident  And  That  The  Accident  Arose  Out  Of  And  In  The 
Course  Of  The  Employment. 

RULINGS  AFFECTING  SPECIFIC  CASES  AS  ARISING  OUT  OF  AND  IN  THE  COURSE 
OF  THE  EMPLOYMENT. 

296.  Acting  Under  Unauthorized  Orders. 

297.  Acids. 

298.  Act  Of  God. 

299.  Anaesthetic  Causing  Death  During  Surgical  Operation. 

300.  Anthrax. 

301.  Appendicitis. 

302.  Apoplexy. 

303.  Apprentice. 

304.  Asphyxiation. 

305.  Assisting  A  Fellow  Employee,  Employee  Of  Another  Employer  Or  A 

Stranger. 

306.  Bite  Of  Animals. 

307.  Bites  And  Stings  From  Insects  And  Reptiles. 

308.  Bone  Felon. 

309.  Brights  Disease. 

310.  Burns. 

311.  Cancer. 

312.  Carbuncle. 

313.  Charity  Worker  And  Persons  Seeking  Relief  From  Charity,  Injured. 

314.  Chauffeur. 

315.  Concussion  Of  Brain. 

316.  Contagious  Skin  Disease. 

317.  Delirium  Tremens. 

318.  Dislocations. 

319.  Drivers  Injured. 

xvn 


TABLE   OF    CONTENTS. 
CHAPTER  VI.  Con. 

Sec. 

320.  Drowning. 

321.  Electrical  Shock  And  Electrocution. 

322.  Emergency. 

323.  Erysipelas. 

324.  Explosions. 

325.  Exposure. 

326.  Eye  Injuries. 

327.  Falls  From  Vertigo  Or  Other  Like  Causes. 

328.  Falling  Objects. 

329.  Frost  Bites  And  Freezing. 

330.  Gangrene  Resulting  From  Injury. 

331.  Glanders. 

332.  Heart  Disease. 

333.  Heat  Stroke  And  Sun  Stroke. 

334.  Hemorrhage. 

335.  Hernia. 

336.  Independent  Contractor  Doing  Extra  Work. 

337.  Infection  From  Various  Causes. 

338.  Influenza. 

339.  Insanity. 

340.  Intoxication. 

341.  Ivy  Poisoning. 

34i2.  Landslide  And  Snowslides. 

343.  Lightning. 

344.  Mental  Shock. 

345.  Misunderstood  Orders. 

346.  Neurosis. 

347.  Paralysis. 

348.  Pneumonia. 

349.  Ruptures. 

350.  School  Teacher  Injured  Or  Killed. 

351.  Self  Inflicted  Injuries. 

352.  Suicide. 

353.  Testing  Racing  Motorcycle. 

354.  Tetanus. 

355.  Toxic  Amblyopia. 

356.  Tuberculosis. 

357.  Typhoid  Fever. 

358.  Ulcers. 

359.  Unintentional  Injury  By  A  Fellow  Employee. 

360.  Using  Elevator  Contrary  To  Instructions. 

361.  Using  Machinery  Other  Than  That  Employed  To  Use. 


xvni 


TABLE  OP   CONTENTS. 

CHAPTER  VI.  Con. 

Sec. 

362.  Volunteers. 

363.  Watchman. 

364.  Window  Cleaner  Falling  From  Ledge. 

CHAPTER  VII. 
DEATH  BENEFITS,  FUNERAL  EXPENSES,  AND  DEPENDENCY. 

365.  Death  Benefits. 

366.  Funeral  Expenses. 

DEPENDENTS. 

367.  Who  Are  Dependents  and  What  Constitutes  Dependency. 

368.  Presumption  Relating  to  Dependency. 

369.  Wife  Living  Apart  From  Husband. 

370.  Dependency  and  Matters  Relative  Thereto  as  Question  of  Law  or 

Fact. 

371.  Partial  Dependents. 

372.  Total  Dependents. 

373.  Dependency  of  Parents,  Grandparents,  and  Other  Relatives  of  De- 

ceased Workmen. 

374.  What  Children  May  Be  Dependents. 

375.  Alien  Dependents,  and  Constitutionality  of  Provisions  Pertaining  to 

Aliens. 

376.  Illegal  and  Divorced  Wives. 

377.  Desertion  and  Non-support. 

378.  Marriage  or  Remarriage  of  Dependent. 

379.  Rights  of  Dependents  Independent  of  the  Rights  of  Deceased,  and 

Third  Parties. 

380.  Death  of  Beneficiaries  or  of  an  Employee  Before  the  Period   For 

Which  an  Award  Has  Been  Made  Has  Elapsed. 

381.  Absence  of  Dependents. 

382.  Inheriting  From  the  Estate  of  Deceased  or  Receiving  Benefits  From 

Other  Sources. 

383.  Claim  for  Compensation  by  the  Personal  Representative  or  Adminis- 

trator. 

384.  Dependent  on  More  Than  One  Workman. 

385.  Submitting  to  an  Operation. 

386.  Estopped  to  Dispute  Claim  of  Dependents  After  Deceased's  Death. 

387.  Necessity  of  Administrating  Upon  Estate  of  Workman. 

388.  Division  of  Compensation  Between  Dependents — Double  Compensa- 

tion. 

389.  Deductions. 

390.  Evidence. 

XIX 


TABLE   OP    CONTENTS. 

CHAPTER  VII.  Con. 

Sec. 

391.  Burden  of  Proof. 

392.  Guardians. 

393.  Dependency  Under  the  Federal  Act. 

394.  Adoption  Under  the  Federal  Act. 

395.  To  Whom  Compensation  of  Children  With  a  Surviving  Parent   is 

Paid. 

396.  Illegitimate  Children. 

397.  Who  Is  the  Widow  of  an  Employee. 

CHAPTER  VIII. 
DISABILITY  BENEFITS  AND  COMPENSATION  BENEFITS. 

398.  In  General. 

399.  Waiting  Period. 

400.  Classes  of  Disability,  and  What  Constitutes. 

401.  Disfigurement,  Compensation  Without  Disability,  Damages. 

402.  Impairment  of  Physical  Efficiency  Without  Wage  Loss. 

403.  Termination  of  Disability. 

404.  Pain  Suffering  and  Old  Age  as  Affecting  Right  to  Compensation. 

405.  Latent  Disease  Accelerated  by  Accident  Causing  Disability. 

406.  Further  Disability. 

407.  Extent  of  Disability,  How  and  When  Determined. 

PERMANENT  PARTIAL. 

408.  In  General. 

409.  Loss  of  or  Injury  to  Eye. 

410.  Loss  of  Arm,  Hand  or  Finger. 

411.  Injury  to  Arm,  Hand  or  Finger. 

412.  Injury  to  Leg  or  Foot. 

413.  Loss  of  Leg  or  Foot. 

414.  Loss  of  or  Impairment  of  Hearing. 

415.  Injury  to  the  Nose. 

TEMPORARY  PARTIAL. 

416.  In  General. 

417.  Injury  to  Arm,  Hand  or  Finger. 

PERMANENT  TOTAL. 

418.  In  General. 

419.  Loss  of  or  Injury  to  Eye. 

420.  Loss  of  or  Injury  to  Arm,  Hand  or  Finger. 

421.  Injury  to,  or  Loss  of  Leg  or  Foot. 
XX 


TABLE   OF    CO  NT  I/. 

CHAPTER  VIII.  Con 
TKMPORARY  TOTAL. 

Sec. 

422.  In  General. 

423.  Loss  of  Arm,  Hand  or  Finger. 

424.  Loss  of  Leg  or  Foot. 

425.  Injury  to  Leg  or  Foot. 

426.  Concurrent  Compensation  for  Concurrent  Disability  from  Separate 

Causes. 

427.  Deductions  and  Set-offs,  and  Duty  of  Claimant  to  Reduce  Loss. 

428.  Submission  to  a  Surgical  Operation  and  Refusal  to  Accept  Medical 

Services  Offered  by  Employer. 

CHAPTER  IX. 
EARNING  As  BASIS  OF  COMI-KNSATIOX. 

429.  When  Compensation  May  be  Computed  on    the  Basis  of  the  Earn- 

ings of  Another  Employee  in  the  Same  Line  of  Work. 

430.  When  Average  Wages  are  to  be  Based  on  Amount  Actually  Earned. 

431.  Computation  of  Wages  Where  an  Employee  Has  Worked  Less  Than 

a  Year. 

432.  Where  Employee  Has  Worked  Substantially  Full  Year  or  More. 

433.  Employee  Working  More  or  Less  Than  6  Days  a  Week. 

434.  Employment  at  Stated  Periods. 

435.  Intermittent  Employments. 

436.  Seasonal  Employments. 

437.  Employee  Under  Contract  of  Employment  for  "Year  Round." 

438.  Piece  Work  and  Work  by  the  Hour. 

439.  Wages  Based  Upon  the  Reports  of  an  Employer  and  Employee. 

440.  Tips  or  Gratuities  to  be  Considered  When. 

441.  Probable  Increase  of  Wages. 

442.  Higher  Wage  at  Time  of  Accident. 

443.  Deducting  Sundays,  Holidays,  and   Days  Employee  Was  Prevented 

From  Working  Through  no  Fault  of  His  Own. 

444.  What  Items  Are  Proper  Matters  to  be  Deducted  From  Workmen's 

Wages. 

445.  When   Board   and   Room   Value   Should   be  Considered   as   Part   of 

Wages. 

446.  Absence  of  Agreement  as  to  Rate  of  Wages. 

447.  Dual  Employments  and  Employers. 

448.  Where  Weekly  Wage  Exceeds  Statutory  Amount. 

449.  Where  the  Union  Scale  Paid  by  Other  Employers  is  Higher. 

450.  National  Guardsman. 

451.  Judicial  Notice. 

452.  Partial  Disability  Award. 

XXI 


TABLE  OF    CONTENTS. 

CHAPTER  IX.  Con. 

Sec. 

453.  Commissions. 

454.  Evidence. 

455.  Construction  of  the  Term  "Average  Amount  Contributed  Weekly." 

CHAPTER  X. 

INSURANCE. 

456.  General. 

457.  Self  Insurance. 

458.  Nature   of  Policies  Permitted  and  Liability  of  Holder. 

459.  Elxtra  Territorial  Coverage. 

460.  When  Contract  for  Insurance  is  Consummated. 

461.  Coverage. 

462.  Liability  of  Principal  Employer  for  Compensation  to  Employees  of 

Subcontractor. 

463.  Recurrence  of  Disability  and  Liability  of  Subsequent  Insurance  Car- 

rier. 

464.  Construing  a  Policy. 

465.  Loaned  Employee. 

466.  Subrogation  of  an  Insurance  Carrier. 

467.  Subrogation  of    Injured    Employee  to  Employer's   Rights   Against 

Insurer   in  Case  of  Employer's    Insolvency. 

468.  Cancellation  of  a  Policy. 

469.  Providing  Insurance  as  Relieving  Employer. 

470.  Estoppel  of  Insurance  Company  to  Deny  Liability. 

471.  Where  Employer  is  in  Default  in  His  Payments  to  the  State  Insur- 

ance Fund,  or  has  Permitted  His  Policy  to  Lapse. 

472.  Validity  of  a  Provision  of  the  Act  Requiring  Payment  Into  a  Special 

Fund. 

473.  State  Funds. 

474.  Where  Act  Provides  That  Compensation  Shall  be  Payable  But  Makes 

No  Provision  for  Raising  a  Fund  to  Pay  the  Compensation. 

475.  Intervention. 

476.  Right  of  an  Insurer  to  Object  to  an  Agreement  for  Compensation. 

477.  Effect  of  Revocation  of  Insurance  Carrier's  Authority. 

478.  Satisfaction  of  an  Award. 

479.  The  Right  of  an  Insurance  Carrier  to  Attack  an  Award  Collaterally 
•480.  Reformation  or  Amendment  of  Policy. 

481.  Right  to  Sue  Insurance  Carrier. 

482.  Fraud  in  Securing  Policy. 

483.  Lump  Sum  Agreements. 

484.  Notice  as  a  Prerequisite  to  Liability. 

XXII 


TABLE  OP   CONTENTS. 

CHAPTER  X.     Con. 

Sec. 

485.  Transfer  of  Interest  as  Releasing  Liability. 

486.  Power  of  Industrial  Commission  to  Fix  Insurance  Rates. 

487.  Industrial  Commission's  Jurisdiction. 

CHAPTER  XI. 
MEDICAL  BENEFITS. 

488.  General. 

489.  Employers'  Duty  to  Furnish  Medical  Aid. 

490.  Neglect,  Failure,  or  Refusal  of  Employer  to  Provide  Medical  Treat- 

ment. 

491.  When  the  Employee  is  Personally  Liable  for  His  Medical  Treatment. 

492.  What  Included  as  Medical  and  Hospital  Service. 

493.  Deduction  of  Excess  Over   Statutory   Amount  of   Medical   Expense 

Incurred. 

494.  Medical  Aid  After  Statutory  Period. 
495:     Medical  Treatment  Causing  Disability. 

496.  Refusal,  Neglect  or  Failure  of  Medical  Treatment. 

497.  Charge  and  Recovery  By  Physician. 

498.  Submission  to  Physical  Examination. 

499.  Autopsy. 

CHAPTER  XII. 
COMPROMISE,  SATISFACTION,  RELEASE,  AND  ARBITRATION. 

500.  Compromise  or  Amicable  Settlement. 

501.  Release. 

502.  Satisfaction. 

503.  Arbitration. 

CHAPTER  XIII. 

COMMUTATION  OF  AWARD. 

504.  General. 

505.  Sufficiency  of  Evidence  to  Warrant  Lump  Sum  Award. 

506.  Consent  of  Parties. 

CHAPTER  XIV. 

EVIDENCE. 
ADMISSIBILITY. 

507.  General. 

508.  Hearsay. 

509.  Res  Gestae. 

510.  Knowledge  Communicated  to  Physicians. 

XXIII 


TABLE   OF    CONTENTS. 
CHAPTER  XIV.  Con. 


Verdict  of  Coroner's  Inquest. 
Evidence  of  Negligence. 

Proof  of  Relation  of  Employer  and  Employee. 

Exclusion  of  Irrelevant  Admission  of  Relevant  Evidence  in   Same 
Document. 

515.  Employers'  Reports  Admissible. 

516.  Reception  of  Evidence. 

517.  Dying  Declarations. 

518.  Written  Statements  of  Fellow  Employees  Not  Admissible  as  Against 

Employer. 

519.  Admissibility  Generally  in  Specific  Cases. 

WEIGHT  AND  SUFFICIENCY. 

520.  In  General. 

521.  Relation  of  the  Parties. 

522.  Acceptance  or  Rejection  of  the  Statute. 

523.  As  Establishing  That  the  Injury  Arose  Out  of  and  in  the  Course  of 

the  Employment. 

524.  As  to  Dependency. 

525.  Compensation. 

526.  As  to  Wilful  Misconduct  of  Employer. 

PRESUMPTIONS. 

527.  That  Injury  Arose  Out  of  and  in  the  Course  of  the  Employment. 

528.  As  to  Acceptance  of  the  Act. 

529.  As  to  Dependency. 

530.  As  to  Existence  of  Beneficiaries. 

531.  As  to  Notice. 

532.  As  to  Wages. 

533.  Of  Contract  of  Employment. 

534.  Against  Self  Infliction  of  Injuries. 

535.  Of  Death. 

536.  As  to  Date  of  Filing  Claim. 


537.  General. 

538.  Judicial  Notice. 


BURDEN  OF  PROOF. 


CHAPTER  XV. 
NOTICE  AND  LIMITATION. 


539.  General. 

540.  When  the  Time  Begins  to  Run. 

541.  As  Soon  as  Practicable. 

XXIV 


TABLE  OF    CONTENTS. 

CHAPTER  XV.  Con. 

Sec. 

542.  Effect  of  Delay  or  Failure  to  Give  Notice. 

343.  Knowledge  Obviating  Necessity  of  Notice  of  Injury. 

644.  Notice  Excused  by  Special  Conditions. 

545.  Limitations  Mandatory. 

546.  Sufficiency  of  Claim. 

547.  Delay  Excused  by  Statutory  Provisions. 

548.  Date  of  Filing. 

CHAPTER  XVI. 

AOMIN-ISTBATION,    POWER    AN1)    PBOCE1U  Ith  . 

549.  General. 

550.  Procedure. 

551.  Pleading. 

552.  Proceedings  to  Increase,  Diminish  or  Terminate  Compensation. 

553.  Rehearing. 

554.  Findings. 

555.  Powers  of  Commission  or  Board. 

CHAPTER  XVII. 

APPEAL. 

556.  General. 

557.  Jurisdiction. 

558.  Right  of  Appeal. 

559.  Manner  of  Taking  Appeal. 

560.  Conditions  Precedent  to  an  Appeal. 

561.  Matters  Considered  on  Appeal. 

562.  Disposition  of  Appeal. 

563.  Matters  Waived. 

564.  Remand. 

565.  Presumption. 

566.  Parties. 

567.  Jury  and  Instructions. 

CHAPTER  XVIII. 

• 

MIHCKU.ANKOUS  MATTEBS. 

568.  Substituted  Plans  or  Schemes. 

569.  Assignment  and  Exemption  of  Compensation. 

570.  Preference  of  Compensation  Claims. 


XXV 


TABLE   OF    CONTENTS. 

CHAPTER  XVIII.  Con. 

Sec. 

571.  Double  Compensation. 

572.  Penalties. 

573.  Attorneys. 

574.  Costs. 

575.  Interest. 

576.  Construction  of  Statutes. 

577.  Retroactive  Operation  of  Statutes. 

578.  Referendum. 

579.  Rights  Under  Federal  Compensation   Act  and   Federal  Employers' 

Liability  Act. 
Pages 

1320-50     Tables 
1649         Appendix — Forms. 
1736         Synopsis  by  States. 


XXVI 


EXPLANATION  OF  ABBREVIATIONS 

App.  Div. — Reports  of  the  Appellate  Division  of  the  Supreme  Court  of 
New  York. 

A.  E.  U.  S.  C.  C. — Annual  Reports  or  United  States  Compensation  Com- 

mission. 
Bull.  Ohio  Ind.  Com. — Bulletin  of  the  Ohio  Industrial  Commission. 

B.  W.    C.   C. — Butterworth's   Workmen's   Compensation    Cases    (British) 

continuation  of  W.  C.  C. 

C.  A, — Chancery  Appeals  (British). 

Cal.  Ind.  Ace.  Com, — Reports  of  California  Industrial  Accident  Commis- 
sion. 

Conn.  Comp.  Dec. — Decisions  of  the  various  Compensation  Commissioners 
of  the  State  of  Connecticut. 

L.  T.— Law  Times  (British) 

K.  B.— King's  Bench  (British). 

Mass.  Ind.  Ace.  Bd. — Reports  of  the  Massachusetts  Industrial  Accident 
Board. 

N.  C.  C.  A. — Negligence  and  Compensation  Cases  published  by  Callahan 
&  Co.,  Chicago. 

Op.  Sol.  Dep.  L. — Opinions  of  the  Solicitor  of  the  Department  of  Labor, 
1908  to  1915. 

S.  0. — Session  Cases  (British). 

8.  L.  R. — Scottish  Law  Reports. 

W.   C.   A.   Ins.   Cas. — Workmen's   Compensation   and   Accident   Insurance 

Cases  (British  Cases). 

W.  C.  C. — Workmen's  Compensation  Cases  (British). 
W.  C.  L.  J. — Workmen's  Compensation  Law  Journal  published  by  C.  C. 

Hines  Sons  Company,  21  Platt  Street  New  York. 

W.   0.  &  Ins.  Rep. — Workmen's   Compensation   Reports    (British   Cases). 
W.   C.  R. — Workmen's   Compensation   Reports    (British   Cases). 


WORKMEN'S  COMPENSATION  LAW 
VOLUME  I 


CHAPTER   I. 

REASONS    FOR,    HISTORY    OF,    AND    OBJECTIONS    TO 
WORKMEN'S  COMPENSATION  LAWS. 

Sec. 

1.  Reasons   Underlying   Workmen's    Compensation    Legislation. 

2.  History  of  Workmen's  Compensation  Legislation. 

3.  Objections  of  Opponents  of  Compensation  Laws. 

§  1.  Reasons  Underlying  Workmen's  Compensation  Legisla- 
tion.— Modern  industrial  development  has  in  the  past  ten  years 
impressed  the  economist  and  the  legislator,  more  than  ever  be- 
fore, with  the  rightful  interest  of  the  general  public  in  indus- 
trial accidents. 

It  has  become  obvious  that  our  common  and  statutory  law  is 
not  sufficiently  elastic  and  is  too  unscientific  and  uncertain  to 
mete  out  even  justice  to  the  victims  of  these  accidents.  The  re- 
sult is,  they  frequently  become  public  charges. 

Statistics  show  that  approximately  forty  per  cent  of  the  in- 
dustrial accidents,  causing  disability  are  due  neither  to  the  fault 
of  the  employer  nor  the  employee.  Hence,  this  forty  per  cent 
of  such  accidents  and  the  additional  thirty  per  cent  which  are 
due  principally,  though  not  intentionally,  to  the  fault  of  the 
employee,  have  not  been  compensated  under  our  statutory  and 
common  law  system,  for  the  reason  that  compensation  or  dam- 
ages under  that  system  depends  entirely  upon  establishing  the 
fact  of  fault  or  negligence  of  the  employer  as  the  proximate 
cause  of  the  personal  injury.  This  means  that  approximately 
seventy  per  cent  of  the  wage  loss  caused  by  disability,  due  to 
industrial  or  work  accidents,  is  borne  by  the  workers  themselves.1 

1.  Lumberman's  Reciprocal  Ass'n  v.  Behnken.  ( — Tex.  Civ.  App. — ) 
226  S.  W.  154,  7  W.  C.  L.  J.  363.  places  the  non-compensable  personal 
injuries  suffered  in  industry  under  the  common  law  system  at  eighty 
per-cent. 

1 


§1  WORKMEN'S  COMPENSATION  LAWS. 

Though  there  seems  to  be  no  sound  reason  why  they  should 
bear  that  part  of  the  cost  of  the  finished  product  of  an  industry. 

"The  plain  purpose  of  the  compensation  law  is  to  make  the 
risk  of  the  accident  one  of  the  industry  itself,  to  follow  from 
the  fact  of  the  injury,  and  hence  that  compensation  on  account 
thereof  should  be  treated  as  an  element  in  the  cost  of  produc- 
tion, added  to  the  cost  of  the  article  and  borne  by  the  community 
in  general."2 

The  scheme  is  to  charge  upon  the  business  through  insur- 
ance, the  losses  caused  by  it,  making  the  business  and  the  ulti- 
mate consumer  of  its  product,  and  not  the  injured  employee, 
bear  the  burden  of  the  accidents  incident  to  the  business.  The 
statute  contemplates  the  protection,  not  only  of  the  employee, 
but  of  the  employer,  at  the  expense  of  the  ultimate  consumer.3 

The  establishment  of  the  fact  of  fault  or  negligence  of  the 
employer,  under  our  common  law  system  through  an  action  in 
damages  by  the  injured  employe  has  been  one  of  the  thorns  of 
that  system,  in  that  it  "involves  intolerable  delay  and  great 
economic  waste,  gives  inadequate  relief,  operates  unequally  and 
whether  viewed  from  the  standpoint  of  the  employer  or  that  of 
the  employee,  it  is  inequitable,  and  unsuited  to  the  conditions 
of  the  modern  industry. ' '  4 

It  was  with  the  view  to  remedy  these  multifarious  evils  and 
deficiencies  of  our  statutory  and  common  law  system,  as  applied 

2.  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  49J,    152  N.  Y.  Supp.  117; 
In  re  Duncan,  —  Ind.  App.  — ,  (1920),  6  V.  C.  L.  J.  148,  127  N.  E.  289; 
Nadeau  v.  Caribou  Light  &  Power  Co.,  —  Me.,  —  108  Atl.  190,  5  W.  C. 
L.  J.  238;  Scotts  Case,  —Me.—,  104  Atl.  794,  3  W.  C.  L.  J.  49;  Employer's 
Liab.  Asaur.  Ass'n  v.  Indus.  Comm.,  —  Cal.  — ,  177  Pac.  273,  3  W.  C.  L.  J. 
407.    Wangler  Boiler    Co.  v.    Indus.  Comm.  —  111     — ,  122  N.    E.  366,  3 
V,r.  C.  L.  J.  617;  Doey  v.  Clarence  P.  Rowland  Co.,  120  N.  E.  53,  —  N/Y. 
App.  Div.  — ,  2  W.  C.  L.  J.  669;    In  re  Cox,  225  Mass.  220,  114  N.  E.  281, 
15  N.  C.  C.  A.  271;  Bowne  v.  S.  W.  Bowne  Co.,  —  N.  Y.  App.  Div.  — ,  116 
N.  E.  364,  Bl  W.  C.  L.  J.  1183;    Mac  Donald  v.  Employer's  Liab.  Assur. 
Corp.,  —  Me.  —  (1921),  112  At.  719;  Devine's  Case,  —  Mass.  — ,   (1921), 
129  N.  E.  414. 

3.  Spratt  v.  Sweeney  &  Gray  Co,  168  App.  Div.  403,  153  N.  Y.  S.  505, 
9  N.  C.  C.  A.  918. 

4.  Western  Idemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398,  10 
N.  C.  C.  A.  1. 

2 


REASONS  FOR,  HISTORY  OP,  &  OBJECTIONS  TO  ACT.        §2 

to  industrial  accidents,  and  establish  in  its  place  a  more  equita- 
ble and  economically  sound  system,  that  our  workmen's  com- 
pensation laws  have  been  enacted.  The  result  has  been  most 
satisfactory  in  that  injured  employees  receive  immediate  re- 
lief; a  fruitful  source  of  friction  between  employer  and  em- 
ployee has  been  eliminated,  due  to  the  fact  that  compensation 
is  in  most  cases  fixed  and  definite,  a  tremendous  amount  of  bur- 
densome and  expensive  litigation  has  been  eliminated,  and  a 
more  harmonious  relation  between  the  employers  and  employees 
exists  than  was  possible  under  the  old  system. 

§  2.  History  of  Workmen's  Compensation  Legislation. — In 
1883  a  sick  insurance  statute  was  enacted  in  Germany  with  a 
view  to  alleviating  the  conditions  due  to  1he  economic  loss  from 
industrial  accidents,  vocational  disease,  non  employment  and  old 
age. 

The  first  compensation  law  was  enacted  in  Germany  July  6th, 
1884,  and  was  amended  from  time  to  time  and  finally  codified 
in  its  act  of  July  6th,  1911.  There  had  been  modifications,  how- 
ever, of  the  common  or  civil  law  of  the  countries  of  continental 
Europe  that  preceded  the  German  Legislation.  These  modifi- 
cations tended  toward  the  evolution  of  the  idea  that  industries 
should  pay  compensation  to  their  disabled  workers,  on  the  basis 
of  the  risks  arising  out  of  the  employment.  The  Gladstone  Act 
of  1880  was  England's  first  important  modification  of  her  law 
of  the  employers'  liability  for  damage  to  injured  employes; 
though  her  first  compensation  law  was  not  enacted  until  1897. 
The  Austrian  law  antedates  that  ten  years.  Practically  all  the 
countries  of  Europe,  the  provinces  of  Canada  and  Australia  had 
enacted  their  compensation  laws  ten  years  or  more  before  the 
first  attempt  was  made  in -the  United  States,  which  was  the 
Federal  Act  of  1908.  This  act  was  of  limited  scope.  Under  it 
compensation  was  paid  to  artisans  or  laborers  engaged  in  fed- 
eral government  construction  work.  Compensation  in  no  case 
continued  for  longer  than  one  year,  and  was  not  paid  when  it 
was  shown  that  the  employee  had  been  negligent. 

Massachusetts  was  the  first  state  to  take  action  on  the  sub- 
ject of  workmen's  compensation.  Its  Legislature  appointed  a 

3 


§2  WORKMEN'S  COMPENSATION  LAWS. 

commission  to  investigate  the  subject  in  1903,  but  no  compensa- 
tion law  resulted  until  1911,  in  which  year  ten  states5  enacted 
workmen's  compensation  laws.  Montana  in  1909  enacted  a  law 
applying  to  coal  miners  which  was  declared  unconstitutional  as 
was  also  the  compulsory  New  York  Act  of  1910.  Since  the  first 
ten  states  enacted  their  respective  compensation  laws  in  1911, 
thirty-three  of  the  other  states  of  the  union  and  three  territories 
have  also  enacted  similar  laws. 

The  German  compensation  laws  differ  materially  from  the 
English  and  American  laws  in  that  the  former  are  divided  into 
three  general  divisions,  sickness,  accident  and  disability  insur- 
ance. 

The  sickness  fund  takes  care  of  the  employee  during  the  first 
thirteen  weeks  of  disability  caused  by  accident.  This  fund  is 
collected  in  the  proportion  of  one  third  from  the  employers  and 
two  thirds  from  the  employees. 

When  the  disability  continues  for  more  than  thirteen  weeks, 
compensation  is  paid  out  of  the  Accident  Fund  which  is  contrib- 
uted and  managed  entirely  by  the  employers.  The  disability  in- 
surance covers  all  other  forms  of  disability,  and  the  fund,  there- 
for is  contributed  equally  by  employers  and  employees  and  is 
managed  by  representatives  of  both.  There  is,  however,  strict 
governmental  supervision  of  the  entire  system. 

The  German  law  requires  all  employers  to  join  the  Accident 
Insurance  Fund  of  their  respective  trades  as  a  condition  pre- 
cedent to  engaging  in  business. 

In  Great  Britain  the  compensation  act  creates  a  personal  lia- 
bility which  the  employers  may  insure  or  not,  as  they  deem  best, 
though  they  usually  insure  in  privately  managed  stock  or  mu- 
tual insurance  companies  and  these  are  supervised  in  a  general 
way  by  the  government,  just  as  the  American  companies  are 
supervised  by  the  various  insurance  departments  of  the  different 
states. 

The  American  compensation  acts  contain  many  of  the  essen- 
tial features  and  phraseology  of  the  British  and  Canadian  acts, 
so  that  the  British  and  Canadian  decisions  interpreting  their 

5.    Cal.  111.,  Kans.,  Mass.,  Nev.,  N.  H.,  N.  J.  Ohio,  Wash,    and  Wis. 
4 


REASONS  FOB,  HISTORY  OP,  &  OBJECTIONS  TO  ACT.  §3 

own  acts  throw  considerable  light  on  the  interpretation  of  the 
American  acts,  and  will  therefore  be  cited  frequently  in  the  fol- 
lowing pages  of  this  work. 

§  3.  Objections  of  Opponents  of  Compensation  Laws. — It  is 
stated  by  the  opponents  of  compensation  laws,  that  they  are 
arbitrary  of  application  and  that  the  compensation  of  ten  to 
twenty  dollars  per  week  for  stated  periods  or  for  life,  in  cases 
of  permanent  total  disability,  is  inadequate  when  considered  in 
the  light  of  the  liberal  judgments  for  damages  that  are  frequent- 
ly obtained  in  personal  injury  cases  under  the  common  law  sys- 
tem. They  overlook  or  disregard  the  fact  mentioned  in  Section 
one,  that  under  the  common  law  system  approximately  seventy 
per  cent  of  the  victims  of  industrial  accidents  do  not  receive  any 
compensation  or  damages,  while  under  the  compensation  laws 
every  employee  who  suffers  an  accident,  arising  out  of  and  in  the 
course  of  the  employment,  receives  a  fixed  and  definite  compen- 
sation, regardless  of  the  question  of  fault  or  negligence.  They 
further  overlook  th'e  fact  of  the  great  economic  waste  usually 
attendant  on  obtaining  a  judgment  in  damages,  sucli  as  disrupt- 
ing the  working  organization  of  a  plant  or  factory,  by  repeated- 
ly requiring  employee  witnesses  to  be  taken  from  their  work 
and  wait  in  court  often  for  days  at  a  time  to  give  their  testi- 
mony or  attend  court  and  have  the  case  continued  time  after 
time  for  one  reason  or  another,  thus  involving  great  incon- 
venience and  expense.  Another  item  of  great  expense  under  the 
common  law  system,  is  that  of  attorney's  fees.  These  personal 
injury  cases  are  usually  taken  by  attorneys  on  a  contingent  fee 
basis  of  one  third  to  one  half  of  the  amount  recovered  by  settle- 
ment or  suit,  so  that  by  the  time  the  alluringly  large  judgment 
reaches  the  hands  of  the  injured  employe,  the  amount  is  not 
often  larger  than  he  would  receive  under  the  compensation 
law,  not  to  mention  the  fact  that  under  the  compensation  law, 
he  would  receive  the  compensation  at  the  time  of  his  disability, 
when  he  most  needs  it,  rather  than  be  compelled  to  wait  from 
six  months  to  three,  four  or  five  years,  as  is  often  the  case  under 
the  common  law  system,  and  then  never  be  certain  whether  he 
will  receive  it  at  all. 

6 


§3  WORKMEN'S  COMPENSATION  LAWS. 

They  say  it  is  unfair  that  an  injured  employee  who  earns  fifty 
dollars  per  week  should  receive  compensation  at  the  rate  of  ten 
"to  twenty  dollars  per  week.  Why  should  this  difference  not  also 
be  passed  on  to  the  ultimate  consumer?  It  is  considered  that 
when  an  industry  is  paying  its  workmen  such  wages,  the  cost 
of  industrial  accidents  is  thereby  paid  in  advance  by  the  eom- 
sumer  to  the  worker.  He  is  earning  as  much  as  many  employers, 
and,  like  the  employer,  is  expected  to  save  part  of  his  earnings 
for  old  age  and  periods  of  possible  disability.  Though  the  more 
potent  and  controlling  reason  is  that  it  is  socially  unwise  to  pay 
the  injured  worker  full  wages,  or  enough  to  permit  him  to  live 
in  comparative  comfort  or  even  luxury  during  his  period  of  dis- 
ability, because  of  the  encouragement  to  carelessness  and  to 
fraud  and  imposition  through  the  tendency  to  malinger.  The 
result  being,  that  every  industry  would  be  compelled  to  carry  a 
large  false  production  cost  represented  by  the  payments  made 
to  .such  malingering  workers.  Experience  has  demonstrated 
that  this  condition  becomes  burdensome  where  the  weekly  com- 
pensation is  large. 

Bradbury  in  his  work  on  workmen's  compensation  gives  the 
source  of  much  of  the  remaining  opposition  to  compensation 
laws  and  the  answer  thereto,  in  the  following  paragraph,  page 
1,  3rd  edition.  "Until  very  recently  it  has  been  difficult  for 
.American  lawyers  to  reconcile  themselves  to  the  fundamentaj 
changes  which  workmen's  compensation  laws  accomplish  in  the 
principles  underlying  doctrines  with  which  they  have  long  been 
familiar.  The  declaration  that  an  employer  shall  be  responsible 
for  injuries  to  his  workmen,  whether  or  not  the  master  is  at 
fault,  has,  until  very  recently,  in  most  parts  of  the  United 
States,  met  with  almost  instant  opposition  whenever  it  has  been 
made.  Nevertheless,  the  compensation  principle,  when  carefully 
analyzed,  undoubtedly  rests  on  sound  economic,  legal  and  moral 
foundations.  Testimony  from  foreign  countries  and  a  rapidly 
increasing  fund  of  evidence  from  many  of  the  States  of  the 
Union,  prove  that  it  is  not  taking  the  employer's  property 
without  due  process  of  law  to  compel  him  to  pay  compensation 
to  an  injured  workman,  when  the  injury  is  due  to  a  risk  which 
6 


REASONS  FOB,  HISTORY  OF,  A  OBJECTIONS  TO  ACT.  §3 

is   necessarily   incident   to   the   business.     An   assertion   to   the 
contrary  is  an  economic  fallacy."6 

6.    The  Arizona  Copper  Co.,  Ltd.  v.  Hammer,  250  U.  S.  400,  4  W.  C.  L.  J. 
321. 


CHAPTER  II. 

ELECTION,  REJECTION  AND  CONSTITUTIONALITY  OP 

ACTS. 

Sec. 

4.  Elective  and  Compulsory  Acts,  Constitutionality. 

5.  Constitutionality  of  Miscellaneous  Provisions. 

6.  Presumption  of  and  Notice  of  Election  and  Rejection. 

7.  Requirements  as  to  Notice  of  Election. 

8.  Proof  of  Election. 

9.  Effect,  Contractual  Nature  of  Election  and  Duress. 

10.  Election,  When  Exempted  By  Having  Less  Than  Stated  Number 

of  Employees. 

11.  Election    By   Farmers,    Employers    of    Domestic    Servants,    Casual 

Employees  And  Outworkers. 

12.  Election  as  To  Part  Only  Of  Employees. 

13.  Election  To  Reject  And  Abolition  Of  Common  Law  Defenses. 
14r.     Election   By  Minors  and  Minors  Generally. 

15.    Election  To  Reject  And  Action  For  Damages. 

§  4.  Elective  and  Compulsory  Acts,  Constitutionality. — 
The  Supreme  Court  of  the  United  States  has  declared  constitu- 
tional both  the  compulsory1  and  elective2  form  of  act.  There 
are  only  three  states  in  which  the  first  law  enacted,  was  held 
unconstitutional.3  Since  these  decisions  both  state4  and  federal 

1.  Mountain  Timber  Co.  v.  Washington  (March  1917)  243  U.  S.  219,  61 
L.  Ed.  685,  13  N.  C.  C.  A.  927;  Camunas  v.  N.  Y.  &  P.  R.  S.  S.  Co,  (1919) 
171  C.  C.  A.  76. 

2.  Hawkins  v.  Bleakly   (March  1917)  243  U.  S.  210;  61  L.  Ed.  678,  37 
Sup.   Ct.  255,  13  N.  C.  C.  A.  959;  N.  Y.  Central  R.  R.  Co.  v.  White  (March 
1917)   243,  U.  S.    188,  13  N.  C.  C.  A.  943.  61    L.  E.  667,  37  Sup.  Ct.  247; 
Gauthier  v.  Penobscot  Chemical  Co.,  —  Me.  — ,  1921,  113  Atl.  28. 

3.  Ives  v.  South  Buffalo  Ry.  Co.  (March  1911)  201  N.   Y.  271,  94  N.  E. 
431,  34    L.  R.  A.   (N.  S.)    162,  1  N.  C.  C.  A.  517.    on  the  ground  that  it 
imposed  upon  employers  a  liability  without  fault  or  contract;   Cunning- 
ham v.  North  Western  Improvement  Co.,  44  Mont.  180,  119  Pac.  554,  1  N. 
C.  C.  A.  720,  held  it  denied  to  employers,  equal  protection  of  the  laws; 
Kentucky  State  Journal  v.  Workmen's  Compensation  Board,  161  Ky.  562, 
162  Ky.  387,  L.  R.  A.  1916  A.  402,  172  S.  W.  674,  L.  R.  A.  1916  B,  389 
various  grounds  mentioned. 

4.  The  following  are  leading  cases  in  the  state  courts  sustaining  the 
constitutionality    of  the    compensation  acts    of  their  respective    States: 

8 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §4 

courts5   have   uniformly   sustained    the     general    constitutional 
questions    involved    in    the    Workmen's    Compensation    Acts, 


4  Continued. 

5.  Hawkins  v.  Bleakley,  220  Fed.  378;  Raymond  v.  Chicago,  etc.  R.  Co, 
233  Fed.  239. 

Arizona— Superior  &  Pittsburg  Copper  Co.  v.  Davidovich,  19  Ariz. 
402,  171  Pac.  127,  16  N.  C.  C.  A.  801;  1  W.-  C.  L.  J.  727;  C.  A.  S. 
Co.  v.  Ujack,  15  Ariz.  382;  Arizona  Copper  Co.  v.  Hammer,  250 
U.  S.  400,  4  W.  C.  L.  J.  321;  New  Cornelia  Copper  Co.  v. 
Espineza,  (Cir.  Ct.  of  App.)  (Ariz.),  268  Fed.  742;  Indus.  Comm. 
v.  Crisman  (Ariz.),  199  Pac.  390,  1921  Act  unconstitutional. 
California— Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  10  N.  C. 

C.  A.  1,  151  Pac.  398;  Western  Indem.  Co.  v.  Indus.  Comm.,  —  Cal. 

— ,  163  Pac.  60,  Al.  W.  C.  L.  J.  222;  Metal  Co.  v.  Pillsbury,  156  Pac. 

491,  172  Cal.  407; 
Illinois— Deibeikus  v.  Link  Bolt  Co.,  251  111.  454,  104  N.  E.  211;  Strom 

v.  Postal  Telegraph  Co.,  271  111.  544,  111  N.  E.  555;  Victor  Chem- 
ical Works  v.  Industrial  Board,  274  111.  11,  113  N.  E.  173;  Casperis 

Stone  Co.  v.  Indus.  Comm.  —  111.  — ,  115  N.  E.  822. 
Iowa— Hunter  v.  Colfax  Coal  Co.,  154  N.  W.  1037,  11  N.  C.  C.  A.  886, 

175  la.  245. 
Kansas— Shade  v.  Ash  Grove  Co.,  93  Kan.  257,  144  Pac.  L49;    Hovis 

v.  Cudahy  Co.,  95  Kan.  505,  148  Pac.  626. 
Kentucky— Greene  v.  Caldwell,  186  S.  W.  648,  150  Ky.  571. 
Maine-^In  re  Mailman,  118  Me.  172,  106  Atl.  196,  Fish's  Case,  113  Me. 

489,  107  Atl.  32,  4  W.  C.  L.  J.  390. 
Maryland — Solvuca  v.  Ryan  and  Reilly  Co.,  —  Md.  App.  — ,  101  Atl. 

710. 
Massachusetts— Opinions    of  Justices,  209  Mass.  607,  96  N.  E.  308; 

Young  v.  Duncan,  218  Mass.  346,  106  N.  E.  1.  Duart  v.  Simmons 

231  Mass.  313,  121  N.  E.  10,  3  W.  C.  L.  J.  136. 
Michigan— Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8.  153,  NT.  W. 

49;  Wood  v.  City  of  Detroit,  155  N.  W.  592,  L.  R,  A.  1916  C.  388. 
Minnesota— Matheson  v.  Minneapolis  Street  Ry.,  126  Minn.  2.86,  148 

N.  W.  71. 
Montana — Lewis  &  Clark  County  v.  Industrial  Board,  155  Pac.  268; 

Shea  v.  North  Butte  Mining  Co.,  3  W.  C.  L.  J.  768,  179  Pac.  499. 
New  Hampshire— Wheeler  v.  Contootuck  Mills,  94  Atl.  265,  77  N.  H. 

551. 
New  Jersey— Sexton  v.  Newark  Dist.  Tel.  Co.,  84  N.  J.  L.  85,  3  N.  C. 

C.  A.  569,  86  Atl.  451,  86  N.  J.  L.  701,  91  Atl.  1070;    Huyett  v. 

Penna    Ry.  Co,  86  N.  J.  L.    683,  92  Atl.  58;    Troth  v.  Mlllville 

Bottle  Works,  86  N.  J.  L.  558,  91  Atl.  1031. 

9 


§4  WORKMEN'S  COMPENSATION  LAWS. 

a 

though  in  some  states  minor  provisions  of  the  acts  have  been 
held  unconstitutional.6 

6.     Courier  v.   Simpson  Construction  Co.,  246  111.  488;    106  N.  E.  350. 
Great  Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35;  9  N.  C. 

4  Continued. 

New  York— Jensen  v.    Southern  Pac.    Co.,  215  N.   Y.    514,  109    N.  E. 

600,    L.R.  A.  1916  A,  493    Ann.  Gas.    1916  B,  ^79,  9    N.  C.  C.  A. 

286;   Sperduto  v.  New  York  City  Int.  Ry.    Co.  (N.  Y.)  ?  W.C.  L. 

J.   503,  226  N.  Y.  73,  123  N.  E.   207. 
North  Dakota— State  ex  rel.  Amerland  v.  Hagan,  —  N.  Dak.  — ,  175 

N.  W.  372,  5  W.  C.  L.  J.  446. 
Ohio— Ex  rel.  Yaple  v.  Creamer,  85  Ohio  St.  349;    97  N.  E.  602,  1  N.  C. 

C.  A.  30;   Jeffrey  Mfg.  Co.,  v.  Blagg,  90  Ohio  376,  108  N.  E.  465, 

Affirmed,  235  U.  S.  571,  59  L.  Ed.  364,  35  Sup.  Ct.  167,  7  N.  C.  C.  A. 

570. 

Oklahoma— Adams  v.  Iten  Biscuit  Co.,  162  Pac.  938. 
Oregon — Evanhoff   v.  State  Ind.    Commission,  154    Pac.  106.    78  Ore. 

503. 
Pennsylvania — Anderson  v.  Carnegie  Steel  Co.,  99  Atl.  215,  255  Pa. 

33. 

Rhode  Island— Sayles  v.  Foley,  96  Atl.  340,  38  R.  I.  484. 
Texas— Middleton  v.  Texas  Power  &  Light  Co.,  178  S.  W.  956,  185  S. 

W.  556;   Marshall  Mill  &  Elevator  Co.  v.  Schanberg   (Tex.  Civ. 

App.)  190  S.  W.  229. 
Utah— Garfield  Smelting  Co.  v.  Ind.  Com.  of  Utah,  3  W.  C.  L.  J.  531. 

178  Pac.  57;    Reteuna  v.  Indus.  Comm.,  —  Utah  — ,  185  Pac.  535, 

5  W.  C.  L.  J.  327. 
Washington — State  ex  rel.  Davis-Smith  Co.  v.  Clausen,  65  Wash.  156, 

117  Pac.  1101,  37  L.  R.  A.   (N.  S.)  466,  3  N.  C.  C.  A.  C99;   State 

v.  City  of  Seattle,  73  Wash.  390,  132  Pac.  45;  Stfrtz  v.  Industrial 

Commission,    158  Pac.  256;    State  v.  Mountain    Timber  Co.,  75 

Wasn.  581,  135  Pac.  645,  5  N.  C.  C.  A.  811. 
West  Virginia — De  Francesco  v.  Piney  Mining  Co.,  76  W.  Va.  756, 

86  S.  E.  777,  10  N.  C.  C.  A.  1015,  Rhodes  v.  J.  B.  B.  Coal  Co., 

90  S.  E.  796,  79  W.  Va.  71,  78  W.  Va.  144,  Watts  v.  Ohio  Valley 

Electric  Co.,  88  S.  E.  659. 
Wisconsin— Borgnis  v.  Falk,  147  Wis.  327,  133  N.  W.  209,  3  N.  C.  C.A. 

649,  37  L.  R.  A.  (N.  S.)  489. 

The  following  states  have  adopted  amendments  to  their  constitutions 
to  permit  of  compulsory  laws,  i.  e.:  California  (1911),  Ohio  (1912),  New 
York  (1913),  Pennsylvania  (1915),  and  in  California  an  amendment 
further  enlarging  the  power  of  the  Legislature  is  pending.  Under  the 
Constitution  of  Arizona  and  Wyoming  definite  forms  of  compensation 
laws  are  prescribed. 
10 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

In  the  following  twelve  States  the  law,  though  elective  as  to  private 
employers,  is  compulsory  as  to  such  public  employments  as  are  covered: 
Colorado,  Indiana,  Iowa,  Louisiana,  Maine,  Michigan,  Missouri,  Montana, 
Nevada,  New  Jersey,  Pennsylvania,  South  Dakota,  and  Wisconsin. 

In  the  following  eleven  States  and  one  Territory  the  law  is  compulsory 
as  to  some  or  all  classes  of  private  employers  affected:  Arizona  Cali- 
fornia, Idaho,  Illinois,  Maryland,  New  York,  Ohio,  Oklahoma,  Utah,  Wash- 
ington, Wyoming  and  Hawaii.  All  of  these  laws  except  that  of  Arizona 
are  equally  compulsory  as  to  employees.  North  Dakota  is  compulsory  as 
to  all  employers  and  employees.  The  Porto  Rico  Act  which  '.~  compulsory 
upon  employees  was  held  to  be  compulsory  as  to  employers  also.  Camunas 
v.  N.  Y.  &  P.  R.  S.  S.  Co.,  171  C.  C.  A.  76. 

In  the  "ollowing  thirty-one  states  and  two  Territories  the  law  is  elec- 
tive as  to  all  private  employments  covered:  Alabama,  Colorado,  Connecti- 
cut, Delaware,  Georgia,  Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana,  Maine, 
Massachusetts,  Michigan,  Minnesota,  Missouri,  Montana,  Nebraska,  Nevada, 
New  Hampshire,  New  Jersey,  New  Mexico,  Oregon,  Pennsylvania,  Rhode 
Island,  South  Dakota,  Tennessee,  Texas,  Vermont,  West  Virginia,  Virginia, 
Wisconsin,  Alaska,  and  Porto  Rico.  And  New  York,  besides  a  compulsory 
act,  has  also  a  little  used  elective  act  of  wider  scope.  (Art.  14  of  ch.  36 
Laws  1909,  as  amended.)  Under  all  these  acts  except  that  of  West  Vir- 
ginia, the  liability  for  compensation  is  elective  as  to  both  employers  and 
employees.  Under  the  act  of  that  State  employers  only  have  the  right 
of  election.  Under  the  New  Hampshire  act  (which  is  elective  as  to  em- 
ployers) employees  have  the  right  of  election  after  injury,  this  was 
formerly,  also  true  of  the  Arizona  Act. 

The  following  quotation  from  the  opinion  of  the  Supreme 
Court  of  the  United  States  in  the  case  of  New  York  Central  Rail- 
road Co.  v.  White,  243  U.  S.  188,  61  L.  Ed.  667, 13  N.  C.  C.  A.  943, 
while  lengthly,  is  so  pertinent  and  valuable  on  the  question  of 
the  Constitutionality  of  Compensation  Acts  generally  that  the  au- 
thor feels  justified  in  inserting  it.  "In  considering  the  consti- 
tutional question,  it  is  necessary  to  view  the  matter  from  the 
standpoint  of  the  employee  as  well  as  from  that  of  the  em- 
ployer. For,  while  plaintiff  in  error  is  an  employer,  and  cannot 
succeed  without  showing  that  its  rights  as  such  are  infringed 
(Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  544  (58  L. 
Ed.  713) ;  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  167,  576  (59  L.  Ed. 

C.  A.  466;  Perry  v.  Industrial  Accident  Commission  of  California  et  al. 
(Cal.)  181  Pac.  788,  4  W.  C.  L.  J.  350  (1919);  Dominguez  v.  Pendoia,  — 
Cal.  App.  — ,  (1920),  188  Pac.  1025,  6  W.  C.  L.  J.  3. 

11 


§4  WORKMEN'S  COMPENSATION  LAWS. 

364,  7  N.  C.  C.  A.  570)  yet,  as  pointed  out  by  the  court  of  appeals 
in  the  Jensen  Case  (215  N.  Y.  526)  1916  A,  L.  R.  A.  403,  109  N. 
E.  600,  the  exemption  from  further  liability  is  an  essential  part 
of  the  scheme,  so  that  the  statute,  if  invalid  as  against  the  em- 
ployee, is  invalid  as  against  the  employer.  The  close  relation  of 
the  rules  governing  responsibility  as  between  employer  and  em- 
ployee to  the  fundamental  rights  of  liberty  and  property  is  of 
course  recognized.  But  those  rules,  as  guides  of  conduct,  are  not 
beyond  alteration  by  legislation  in  the  public  interest.  No  person 
has  a  vested  interest  in  any  rule  of  law  entitling  him  to  insist 
that  it  shall  remain  unchanged  for  his  benefit.  Munn  v.  Illinois, 
94  U.  S.  113,  134  (24  L.  Ed.  77) ;  Hurtado  v.  California,  110  U. 
S.  516,  532  (28  L.  Ed.  232) ;  Martin  v.  Pittsburg  &  Lake  Erie 
R.  R.,  203  U.  S.  284,  294  (51  L.  Ed.  184,  8  Ann.  Cas.  87) ;  Second 
Employers'  Liability  Cases,  223  U.  S.  1,  50  (56  L.  Ed.  327,  1 
N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44) ;  Chicago  &  Alton  R.  R. 
v.  Tranbarger,  238  U.  S.  6.7,  76  (59  L.  Ed  1204).  The  common 
law  bases  the  employer's  liability  for  injuries  to  the  employee 
upon  the  ground  of  negligence ;  but  negligence  is  merely  the  dis- 
regard of  some  duty  imposed  by  law;  and  the  nature  and  ex- 
tent of  the  duty  may  be  modified  by  legislation,  with  corre- 
sponding change  in  the  test  of  negligence.  Indeed,  liability  may 
be  imposed  for  the  consequences  of  a  failure  to  comply  with  a 
statutory  duty,  irrespective  of  negligence  in  the  ordinary  sense ; 
safety  appliance  acts  being  a  familiar  instance.  St.  Louis  &  Iron 
Mountain  Ry.  v.  Taylor,  210  U.  S.  281,  295  (52  L.  Ed.  1061,  21 
Am.  Neg.  Rep.  464;  Texas  &  Pacific  Ry.  Co.  v.  Rigsby,  241  U. 
S.  33,  39,  43  (60  L.  Ed.  874). 

"The  fault  may  be  that  of  the  employer  himself,  or — most 
frequently — that  of  another  for  whose  conduct  he  is  made  re- 
sponsible according  to  the  maxim  responded!  superior.  In  the  lat- 
ter case  the  employer  may  be  entirely  blameless,  may  have  exer- 
cised the  utmost  human  foresight  to  safeguard  the  employee ;  yet, 
if  the  alter  ego  while  acting  within  the  scope  of  his  duties  be  neg- 
ligent— in  disobedience,  it  may  be,  of  the  employer's  positive  and 
specific  command — the  employer  is  answerable  for  the  conse- 
quences. It  cannot  be  that  the  rule  embodied  in  the  maxim  is  un- 
alterable by  legislation." 
12 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §4 

"The  immunity  of  the  employer  from  responsibility  to  an  em- 
ployee for  the  negligence  of  a  fellow  employee  is  of  comparative- 
ly'recent  origin,  it  being  the  product  of  the  judicial  conception 
that  the  probability  of  a  fellow  workman's  negligence  is  one 
of  the  natural  and  ordinary  risks  of  the  occupation,  assumed 
by  the  employee  and  presumably  taken  into  account  in  the  fixing 
of  his  wages.  The  earliest  reported  cases  are  Murray  v.  Railroad 
Company  (1841),  1  McMull.  (S.  C.)  385,  398  (17  Am.  Neg.  Cas. 
308) ;  Farwell  v.  Boston  &  Worcester  R.  R.  Corp.  (1842),  4  Mete. 
49,  57  (15  Am.  Neg.  Cas.  407) ;  Hutchison  v.  York,  Newcastle  & 
Berwick  Ry.  Co.  (1850),  5  Exch.  343,  351,  19  L.  J.  Exch.  296, 
299,  14  Jr.  837,  840;  Bartonsville  Coal  Co.  v.  Reid  (1858),  3 
Macq.  H.  L.  Cas.  266,  284,  295.  And  see  Randall  v.  Baltimore 
&  Ohio  R.  R.  Co.,  109  U.  S.  478,  483  (27  L.  Ed.  1003) ;  Northern 
Pacific  R.  R.  Co.  v.  Herbert,  116  U.  S.  642,  647  (29  L.  Ed.  755). 
The  doctrine  has  prevailed  generally  throughout  the  United 
States,  but  with  material  differences  in  different  jurisdictions 
respecting  who  should  be  deemed  a  fellow-servant  and  who  a 
vice  principal  or  alter  ego  of  the  master,  turning  sometimes 
upon  refined  distinctions  as  to  grades  and  departments  in  the 
employment.  See  Knutter  v.  N.  Y.  &  N.  J.  Telephone  Co.,  67 
N.  J.  Law  646,  650-653,  52  Atl.  565  (12  Am.  Neg.  Rep.  109,  58  L. 
R.  A.  808).  It  needs  no  argument  to  show  that  such  a  rule  is 
subject  to  modification  or  abrogation  by  a  state  upon  proper 
occasion. 

"The  same  may  be  said  with  respect  to  the  general  doctrine 
of  assumption  of  risk.  By  the  common  law  the  employee  as- 
sumes the  risks  normally  incident  to  the  occupation  in  which 
he  voluntarily  engages;  other  and  extraordinary  risks  and 
those  due  to  the  employer's  negligence  he  does  not  assume  until 
made  aware  of  them,  or  until  they  become  so  obvious  that  an 
ordinarily  prudent  man  would  observe  and  appreciate  them,  in 
either  of  which  cases  he  does  assume  them,  if  he  continue  in 
the  employment  without  obtaining  from  the  employer  an  as- 
surance that  the  matter  will  be  remedied ;  but  if  he  receive  such 
an  assurance,  then,  pending  performance  of  the  promise,  the 
employee  does  not  in  ordinary  cases  assume  the  special  risk. 
Seaboard  Air  Line  v.  Horton,  233  U.  S.  492,  504  (58  L.  Ed.  1062, 

13 


§4  WORKMEN'S  COMPENSATION  LAWS. 

.  8  N.  C.  C.  A.  834,  Ann.  Gas.  1915  B  475) ;  239  U.  S.  595,  599  (60 
L.  Ed.  458).  Plainly,  these  rules,  as  guides  of  conduct  and  tests 
of  liability,  are  subject  to  change  in  the  exercise  of  the  sovereign 
authority  of  the  state. 

"So,  also,  with  respect  to  contributory  negligence.  Aside  from 
injuries  intentionally  self-inflicted,  for  which  the  statute  under 
consideration  affords  no  compensation,  it  is  plain  that  the  rules 
of  law  upon  the  subject,  in  their  bearing  upon  the  employer's 
responsibility,  are  subject  to  legislative  change;  for  contrib- 
utory negligence,  again,  involves  a  default  in  some  duty  resting 
on  the  employee,  and  his  duties  are  subject  to  modification. 

"It  may  be  added,  by  way  of  reminder,  that  the  entire  matter 
of  liability  for  death  caused  by  wrongful  act,  both  within  and 
without  the  relation  of  employer  and  employee,  is  a  modern 
statutory  innovation,  in  which  the  states  differ  as  to  who  may 
sue,  for  whose  benefit,  and  the  measure  of  damages. 

<cBut  it  is  not  necessary  to  extend  the  discussion.  This  court 
repeatedly  has  upheld  the  authority  of  the  states  to  establish 
by  legislation  departures  from  the  follow-servant  rule  and  other 
common-law  rules  affecting  the  employer's  liability  for  personal 
injuries  to  the  employee.  Missouri  Ry.  Co.  v.  Mackey,  127  U.  S. 
205,  208  (32  L.  Ed.  107) ;  Minneapolis  &  C.  Railway  Co.  v.  Her- 
rick,  127  U.  S.  210  (32  L.  Ed.  109) ;  Minnesota  Iron  Co.  v.  Kline, 
199  U.  S.  593,  598  (50  L.  Ed.  322) ;  Tullis  v.  Lake  Erie  &  Western 
R.  R.,  175  IT.  S.  348  (44  L.  Ed.  192,  21  Am.  Neg.  Rep.  401n) ; 
Louisville  &  Nashville  R.  R.  v.  Melton,  218  U.  S.  36,  53  (54  L. 
Ed.  921,  47  L.  R.  A.  (N.  S.)  84) ;  Chicago,  Ind.  &  L.  Ry.  Co.  v. 
Hackett,  228  U.  S.  559  (57  L.  Ed.  966) ;  Wilmington  Mining  Co. 
v.  Fulton,  205  U.  S.  60,  73  (51  L.  Ed.  708) ;  Missouri  Pacific  Ry. 
Co.  v.  Castle,  224  U.  S.  541,  544  (56  L.  Ed.  875).  A  correspond- 
ing power  on  the  part  of  congress,  when  legislating  within  its 
appropriate  sphere,  was  sustained  in  Second  Employers'  Liability 
Cases,  223  U.  S.  1  (56  L.  Ed.  327,  1  N.  C.  C.  A.  875,  38  L.  R.  A. 
(N.  S.)  44).  And  see  El  Paso  &  N.  E.  Ry.  v.  Gutierrez,  215  U.  S. 
87,  97  (54  L.  Ed.  106) ;  Bait.  &  Ohio  R.  R.  v.  Int.  Com.  Comm., 
221  U.  S.  612,  619  (55  L.  Ed.  878). 

"It  is  true  that  in  the  case  of  the  statutes  thus  sustained  there 
were  reasons  rendering  the  particular  departures  appropriate. 
14 


ELECTION,  REJECTION  &,  CONSTITUTIONALITY  OP  ACTS.  §4 

Nor  is  it  necessary,  for  the  purposes  of  the  present  case,  to  say 
that  a  state  might,  without  violence  to  the  constitutional  guaran- 
ty of  "due  process  of  law,"  suddenly  set  aside  all  common-law 
rules  respecting  liability  as  between  employer  and  employee, 
without  providing  a  reasonably  just  substitute.  Considering  the 
vast  industrial  organization  of  the  State  of  New  York,  for  in- 
stance, with  hundreds  of  thousands  of  plants  and  millions  of 
wage  earners,  each  employer  on  the  one  hand  having  embarked 
his  capital  and  each  employee  on  the  other  having  taken  up  his 
particular  mode  of  earning  a  livelihood,  in  reliance  upon  the 
probable  permanence  of  an  established  body  of  law  governing 
relation,  it  perhaps  may  be  doubted  whether  the  state  could 
abolish  all  rights  of  action  on  the  one  hand,  or  all  defenses  on  the 
other,  without  setting  up  something  adequate  in  their  stead. 
No  such  question  is  here  presented,  and  we  intimate  no  opinion 
upon  it.  The  statute  under  consideration  sets  aside  one  body 
of  rules  only  to  establish  another  system  in  its'  place.  If  the 
employee  is  no  longer  able  to  recover  as  much  as  before  in  case 
of  being  injured  through  the  employer's  negligence,  he  is  en- 
titled to  moderate  compensation  in  all  cases  of  injury,  and  has 
«  certain  and  speedy  remedy  without  the  difficulty  and  expense 
of  establishing  negligence  or  proving  the  amount  of  the  dam- 
ages. Instead  of  assuming  the  entire  consequences  of  all  ordi- 
nary risks  of  the  occupation,  he  assumes  the  consequences,  in  ex- 
cess of  the  scheduled  compensation,  of  risks  ordinary  and  ex- 
traordinary. On  the  other  hand,  if  the  employer  is  left  without 
defense  respecting  the  question  of  fault,  he  at  the  same  time  is 
assured  that  the  recovery  is  limited,  and  that  it  goes  directly  to 
the  relief  of  the  designated  beneficiary.  And  just  as  the  em- 
ployee's assumption  of  ordinary  risks  at  common  law  presumably 
was  taken  into  account  in  fixing  the  rate  of  wages,  so  the  fixed 
responsibility  of  the  employer,  and  the  modified  assumption  of 
risk  by  the  employee  under  the  new  system,  presumably  will  be 
reflected  in  the  wage  scale.  The  act  evidently  is  tendered  as  a 
just  settlement  of  a  difficult  problem,  affecting  one  of  the  most 
important  of  social  relations,  and  it  is  to  be  judged  in  its  en- 
tirety. We  have  said  enough  to  demonstrate  that,  in  such  an 
adjustment,  the  particular  rules  of  the  common  law  affecting 

15 


§4  WORKMEN'S  COMPENSATION  LAWS. 

the  subject-matter  are  not  placed  by  the  Fourteenth  Amend- 
ment beyond  the  reach  of  the  law-making  power  of  the  state; 
and  thus  we  are  brought  to  the  question  whether  the  method 
of  compensation  that  is  established  as  a  substitute  transcends  the 
limits  of  permissible  state  action. 

"We  will  consider,  first,  the  scheme  of  compensation,  defer- 
ring for  the  present  the  question  of  the  manner  in  which  the 
employer  is  required  to  secure  payment. 

"Briefly,  the  statute  imposes  liability  upon  the  employer  to 
make  compensation  for  disability  or  death  of  the  employee  re- 
sulting from  accidental  personal  injury  arising  out  of  and  in  the 
course  of  the  employment,  without  regard  to  fault  as  a  cause 
except  where  the  injury  or  death  is  occasioned  by  the  employee's 
wilful  intention  to  produce  it,  or  where  the  injury  results  sole- 
ly from  his  intoxication  while  on  duty ;  it  graduates  the  com- 
pensation for  disability  according  to  a  prescribed  scale  based 
upon  the  loss  of  earning  power,  having  regard  to  the  previous 
wage  and  the  character  and  duration  of  the  disability;  and 
measures  the  death  benefits  according  to  the  dependency  of  the 
surviving  wife,  husband,  or  infant  children.  Perhaps  we  should 
add  that  it  has  no  retrospective  effect,  and  applies  only  to  cases 
arising  some  months  after  its  passage. 

"Of  course,  we  cannot  ignore  the  question  whether  the  new 
arrangement  is  arbitrary  and  unreasonable,  from  the  standpoint 
of  natural  justice.  Respecting  this,  it  is  important  to  be  observed 
that  the  act  applies  only  to  disabling  or  fatal  personal  injuries 
received  in  the  course  of  hazardous  employment  in  gainful  oc- 
cupation. Reduced  to  its  elements,  the  situation  to  be  dealt  with 
is  this:  Employer  and  employee,  by  mutual  consent,  engage  in 
a  common  operation  intended  to  be  advantageous  to  both;  the 
employee  is  to  contribute  his  personal  services,  and  for  these 
is  to  receive  wages,  and  ordinarily  nothing  more;  the  employer 
is  to  furnish  plant,  facilities,  organization,  capital,  credits,  is 
to  control  and  manage  the  operation,  paying  the  wages  and 
other  expenses,  disposing  of  the  product  at  such  prices  as  he 
can  obtain,  taking  all  the  profits,  if  any  there  be,  and  of  necessity 
bearing  the  entire  losses.  In  the  nature  of  things,  there  is  more 
or  less  of  a  probability  that  the  employee  may  lose  his  life 
16 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

through  some  accidental  injury  arising  out  of  the  employment, 
leaving  his  widow  or  children  deprived  of  their  natural  support ; 
or  that  he  may  sustain  an  injury  not  mortal  but  resulting  in  his 
total  or  partial  disablement,  temporary  or  permanent,  with  cor- 
responding impairment  of  earning  capacity.  The  physical  suf- 
fering must  be  borne  by  the  employee  alone;  the  laws  of  nature 
prevent  this  from  being  evaded  or  shifted  to  another,  and  the 
statute  makes  no  attempt  to  afford  an  equivalent  in  compen- 
sation. But,  besides,  there  is  the  loss  of  earning  power;  a  loss 
of  that  which  stands  to  the  employee  as  his  capital  in  trade. 
This  is  a  loss  arising  out  of  the  business  and,  however  it  may 
be  charged  up,  is  an  expense  of  the  operation,  as  truly  as  the 
cost  of  repairing  broken  machinery  or  any  other  expense  that 
ordinarily  is  paid  by  the  employer.  Who  is  to  bear  the  charge? 
It  is  plain  that,  on  grounds  of  natural  justice,  it  is  not  unreason-* 
able  for  the  state,  while  relieving  the  employer  from  responsi- 
bility for  damages  measured  by  common-law  standards  and 
payable  in  cases  where  he  or  those  for  whose  conduct  he  is  an- 
swerable are  found  to  be  at  fault,  to  require  him  to  contribute  a 
reasonable  amount,  and  according  to  a  reasonable  and  definite 
scale,  by  way  of  compensation  for  the  loss  of  earning  power 
incurred  in  the  common  enterprise,  irrespective*  of  the  question 
of  negligence,  instead  of  leaving  the  entire  loss  to  rest  where 
it  may  chance  to  fall — that  is,  upon  the  injured  employee  or 
his  dependents.  Nor  can  it  be  deemed  arbitrary  and  unreason- 
able, from  the  standpoint  of  the  employee's  interest,  to  supplant 
a  system  under  which  he  assumed  the  entire  risk  of  injury  in 
ordinary  cases,  and  in  others  had  a  right  to  recover  an  amount 
more  or  less  speculative  upon  proving  facts  of  negligence  that 
often  were  difficult  to  prove,  and  substitute  a  system  under 
which  in  all  ordinary  cases  of  accidental  injury  he  is  sure  of  a 
definite  and  easily  ascertained  compensation,  not  being  obliged 
to  assume  the  entire  loss  in  any  case  but  in  all  cases  assuming 
any  loss  beyond  the  prescribed  scale. 

"Much  emphasis  is  laid  upon  the  criticism  that  the  act  creates 
liability  without  fault.  This  is  sufficiently  answered  by  what 
has  been  said,  but  we  may  add  that  liability  without  fault  is 
not  a  novelty  in  the  law.  The  common-law  liability  of  the  car- 

17 
W.  C.— 1 


§4  WORKMEN'S  COMPENSATION  LAWS. 

rier,  of  the  innkeeper,  of  him  who  employed  fire  or  other  dan- 
gerous agency  or  harbored  a  mischievous  animal,  was  not  de- 
pendent altogether  upon  questions  of  fault  or  negligence.  Stat- 
utes imposing  liability  without  fault  have  been  sustained.  St. 
Louis  &  San  Francisco  Ey.  v.  Mathews,  165  U.  S.  1,  22  (41  L. 
Ed.  611) ;  Chicago,  B.  I.  etc.,  Ry.  Co.  v.  Zernecke,  183  U.  S.  582, 
586  (46  L.  Ed.  339). 

''We  have  referred  to  the  maxim  respondeat  superior.  In  a 
well-known  English  case,  Hall  v.  Smith,  2  Bing.  156,  160,  this 
maxim  was  said  by  Best,  C.  J.,  to  be  bottomed  on  this  principle, 
that  he  who  expects  to  derive  advantage  from  an  act  which  is 
done  by  another  for  him,  must  answer  for  any  injury  which  a 
third  person  may  sustain  from  it.  And  this  view  has  been  adop- 
ted in  New  York.  Cardot  v.  Barney,  63  N.  Y.  281,  287  (20  Am. 
Rep.  533).  The  provision  for  compulsory  compensation,  in  the 
act  under  consideration,  cannot  be  deemed  to  be  an  arbitrary 
and  unreasonable  application  of  the  principle,  so  as  to  amount 
to  a  deprivation  of  the  employer's  property  without  due  process 
of  law.  The  pecuniary  loss  resulting  from  the  employee's  death 
or  disablement  must  fall  somewhere.  It  results  from  something 
done  in  the  course  of  an  operation  from  which  the  employer 
expects  to  derive  a  profit.  In  excluding  the  question  of  fault 
as  a  cause  of  the  injury,  the  act  in  effect  disregards  the  proximate 
cause  and  looks  to  one  more  remote — the  primary  cause,  as  it 
may  be  deemed — and  that  is,  the  employment  itself.  For  this, 
both  parties  are  responsible,  since  they  voluntarily  engage  in  it 
as  coadventurers,  with  personal  injury  to  the  employee  as  a 
probable  and  foreseen  result.  In  ignoring  any  possible  negligence 
of  the  employee  producing  or  contributing  to  the  injury,  the 
lawmaker  reasonably  may  have  been  influenced  by  the  belief 
that  in  modern  industry  the  utmost  diligence  in  the  employer's 
service  is  in  some  degree  inconsistent  with  adequate  care  on 
the  part  of  the  employee  for  his  own  safety;  that  the  more  in- 
tently he  devotes  himself  to  the  work,  the  less  he  can  take  pre- 
cautions for  his  own  security.  And  it  is  evident  that  the  con- 
sequences of  a  disabling  or  fatal  injury  are  precisely  the  same 
to  the  parties  immediately  affected,  and  to  the  community, 
whether  the  proximate  cause  be  culpable  or  innocent-  Viewing 
18 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

the  entire  matter,  it  cannot  be  pronounced  arbitrary  and  unrea- 
sonable for  the  state  to  impose  upon  the  employer  the  absolute 
duty  of  making  a  moderate  and  definite  compensation  in  money 
to  every  disabled  employee,  or  in  case  of  his  death  to  those  who 
were  entitled  to  look  to  him  for  support,  in  lieu  of  the  common- 
law  liability  confined  to  cases  of  negligence. 

"This,  of  course,  is  not  to  say  that  any  scale  of  compensation, 
however  insignificant  on  the  one  hand  or  onerous  in  the  other, 
would  be  supportable.  In  this  case,  no  criticism  is  made  on  the 
ground  that  the  compensation  prescribed  by  the  statute  in  ques- 
tion is  unreasonable  in  amount,  either  in  general  or  in  the  par- 
ticular case.  Any  question  of  that  kind  may  be  met  when  it 
arises. 

"But,  it  is  said,  the  statute  strikes  at  the  fundamentals  of 
constitutional  freedom  of  contract ;  and  we  are  referred  to  two 
recent  declarations  by  this  court.  The  first  is  this:  'Included  in 
the  right  of  personal  liberty  and  the  right  of  private  property- 
partaking  of  the  nature  of  each — is  the  right  to  make  contracts 
for  the  acquisition  of  property.  Chief  among  such  contracts 
is  that  of  personal  employment,  by  which  labor  and  other 
services  are  exchanged  for  money  or  other  forms  of  property. 
If  this  right  be  struck  down  or  arbitrarily  interfered  with,  there 
is  a  substantial  impairment  of  liberty  in  the  long-established 
constitutional  sense.'  Coppage  v.  Kansas,  236  U.  S.  1,  14  (59  L. 
Ed.  441,  L.  R.  A.  1915  C.  960).  And  this  is  the  other:  'It  requires 
no  argument  to  show  that  the  right  to  work  for  a  living  in  the 
common  occupation  of  the  community  is  of  the  very  essence  of 
the  personal  freedom  and  opportunity  that  it  was  the  purpose  of 
the  (Fourteenth)  Amendment  to  secure.'  Truax  v.  Raich,  239 
U.  S.  33,  41  (60  L.  Ed.  131). 

"It  is  not  our  purpose  to  qualify  or  weaken  either  of  these 
declarations  in  the  least.  And  we  recognize  that  the  legislation 
under  review  does  measurably  limit  the  freedom  of  employer 
and  employee  to  agree  respecting  the  terms  of  employment,  and 
that  it  cannot  be  supported  except  on  the  ground  that  it  is  a 
reasonable  exercise  of  the  police  power  of  the  state.  In  our  opin- 
ion it  is  fairly  supportable  upon  that  ground.  And  for  this  rea- 
son :  The  subject-matter  in  respect  of  which  freedom  of  contract 

19 


§4  WORKMEN'S  COMPENSATION  LAWS. 

is  restricted  is  the  matter  of  compensation  for  human  life  or  limb 
lost  or  disability  incurred  in  the  course  of  hazardous  employ- 
ment, and  the  public  has  a  direct  interest  in  this  as  affecting  the 
common  welfare.  'The  whole  is  no  greater  than  the  sum  of  all 
the  parts,  and  when  the  individual  health,  safety,  and  welfare 
are  sacrificed  or  neglected,  the  state  must  suffer.'  Holden  v. 
Hardy,  169  U.  S.  366,  397  (42  L,  Ed.  780).  It  cannot  be  doubted 
that  the  state  may  prohibit  and  punish  self-maiming  and  at- 
tempts at  suicide ;  it  may  prohibit  a  man  from  bartering  away  his 
life  or  his  personal  security ;  indeed,  the  right  to  these  is  often  de- 
clared, in  bills  of  rights,  to  be  'natural  and  inalienable;'  and  the 
authority  to  prohibit  contracts  made  in  derogation  of  a  lawfully- 
established  policy  of  the  state  respecting  compensation  for  ac- 
cidental death  or  disabling  personal  injury  is  equally  clear. 
Chicago,  B.  &  Quincy  E.  E.  Co.  v.  McGuire,  219  U.  S.  549,  571 
(55  L.  Ed.  328),  Second  Employers'  Liability  Cases,  223  U.  S. 
1,  52,  (56  L.  Ed.  327),  1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  S.)  44. 

"We  have  not  overlooked  the  criticism  that  the  act  imposes 
no  rule  of  conduct  upon  the  employer  with  respect  to  the  con- 
ditions of  labor  in  the  various  industries  embraced  within  its 
terms,  prescribes  no  duty  with  regard  to  where  the  workmen 
shall  work,  the  character  of  the  machinery,  tools,  or  appliances, 
the  rules  or  regulations  to  be  established,  or  the  safety  devices 
to  be  maintained.  This  statute  does  not  concern  itself  with 
measures  of  prevention,  which  presumably  are  embraced  in  other 
laws.  But  the  interest  of  the  public  is  not  confined  to  these. 
One  of  the  grounds  of  its  concern  with  the  continued  life  and 
earning  power  of  the  individual  is  its  interest  in  the  prevention 
of  pauperism,  with  its  concomitants  of  vice  and  crime.  And,  in 
our  opinion,  laws  regulating  the  responsibility  of  employers  for 
the  injury  or  death  of  employees  arising  out  of  the  employment 
bear  so  close  a  relation  to  the  protection  of  the  lives  and  safety 
of  those  concerned  that  they  properly  may  be  regarded  as 
coming  within  the  category  of  police  regulations.  Sherlock  v.  Ai- 
ling, 93  U.  S.  99,  103  (23  L.  Ed.  819) ;  Missouri  Pacific  Ey.  Co. 
v.  Castle,  224  U.  S.  541,  545  (56  L.  Ed.  875). 

"No  question  is  made  but  that  the .  procedural  provisions  of 
the  act  are  amply  adequate  to  afford  the  notice  and  opportunity 
20 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

to  be  heard  required  by  the  Fourteenth  Amendment.  The  denial 
of  a  trial  by  jury  is  not  inconsistent  with  'due  process.'  Walker 
v.  Sauvinet,  92  U.  S.  90  (23  L.  Ed.  678) ;  Frank  v.  Mangum,  237 
U.  S.  309,  340  (59  L.  Ed.  569). 

"The  objection  under  the  'equal  protection'  clause  is  not 
pressed.  The  only  apparent  basis  for  it  is  in  the  exclusion  of 
farm  laborers  and  domestic  servants  from  the  scheme.  But, 
manifestly,  this  cannot  be  judicially  declared  to  be  an  arbitrary 
classification,  since  it  reasonably  may  be  considered  that  the 
risks  inherent  in  these  occupations  are  exceptionally  patent, 
simple,  and  familiar.  Missouri,  Kansas  &  Texas  Ry.  v.  Cade,  233 
U.  S.  642,  650  (58  L.  Ed.  1135),  and  cases  there  cited. 

"We  conclude  that  the  prescribed  scheme  of  compulsory 
compensation  is  not  repugnant  to  the  provisions  of  the  Four- 
teenth Amendment,  and  are  brought  to  consider,  next,  the  man- 
ner in  which  the  employer  is  required  to  secure  payment  of  the 
compensation.  By  section  50,  this  may  be  done  in  one  of  three 
ways:  (a)  state  insurance,  (b)  insurance  with  an  authorized 
insurance  corporation  or  association,  or  (c)  by  a  deposit  of 
securities.  The  record  shows  that  the  predecessor  of  plaintiff 
in  errpr  chose  the  third  method,  and,  with  the  sanction  of  the 
commission,  deposited  securities  to  the  amount  of  $300,000,  under 
section  50,  and  $30,000  in  cash  as  a  deposit  to  secure  prompt  and 
convenient  payment,  under  section  25,  with  an  agreement  to 
make  a  further  deposit  if  required.  This  was  accompanied  with 
a  reservation  of  all  contentions  as  to  the  invalidity  of  the  act, 
and  had  not  the  effect  of  preventing  plaintiff  in  error  from 
raising  the  questions  we  have  discussed. 

"The  system  of  compulsory  compensation  having  been  found 
to  be  within  the  power  of  the  state,  it  is  within  the  limits  of 
permissible  regulation,  in  aid  of  the  system,  to  require  the  em- 
ployer to  furnish  satisfactory  proof  of  his  financial  ability  to  pay 
the  compensation,  and  to  deposit  a  reasonable  amount  of  securi- 
ties for  that  purpose.  The  third  clause  of  section  50  has  not  been, 
and  presumably  will  not  be,  construed  so  as  to  give  an  unbridled 
discretion  to  the  commission;  nor  is  it  to  be  presumed  that 
solvent  employers  will  be  prevented  from  becoming  self-insurers 
on  reasonable  terms.  No  question  is  made  but  that  the  terms 

21 


§4  WORKMEN'S  COMPENSATION  LAWS. 

imposed  upon  this  railroad  company  were  reasonable  in  view 
of  the  magnitude  of  its  operations,  the  number  of  its  employees, 
and  the  amount  of  its  payroll  (about  $50,000,000  annually)  ; 
hence  no  criticism  of  the  practical  effect  of  the  third  clause  is 
suggested. 

"This  being  so,  it  is  obvious  that  this  case  presents  no  question 
as  to  whether  the  state  might,  consistently  with  the  Fourteenth 
Amendment,  compel  employers  to  effect  insurance  according  to 
either  of  the  plans  mentioned  in  the  first  and  second  clauses. 
There  is  no  such  compulsion,  since  self-insurance  under  the  third 
clause  presumably  is  open  to  all  employers  on  reasonable  terms 
that  it  is  within  the  power  of  the  state  to  impose.  Regarded  as 
optional  arrangements,  for  acceptance  or  rejection  by  employers 
unwilling  to  comply  with  that  clause,  the  plans  of  insurance  are 
unexceptionable  from  the  constitutional  standpoint.  Manifestly, 
the  employee  is  not  injuriously  affected  in  a  constitutional  sense 
by  the  provisions  giving  to  the  employer  an  option  to  secure  pay- 
ment of  compensation  in  either  of  the  modes  prescribed,  for  there 
is  no  presumption  that  either  will  prove  inadequate  to  safeguard 
the  employee's  interests/' 

In  discussing  the  constitutionality  of  the  Iowa  Act  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Hawkins  v.  Bleakley 
said:  "Some  of  appellant's  objections  are  based  upon  the  ground 
that  the  employer  is  subjected  to  a  species  of  duress  in  order  to 
compell  him  to  accept  the  compensation  features  of  the  act,  since 
it  is  provided  that  an  employer  rejecting  these  features  shall 
not  escape  liability  for  personal  injury  sustained  by  an  em- 
ployee arising  out  of  and  in  the  usual  course  of  the  employment 
because  the  employee  assumed  the  risks  of  the  employment,  or 
because  of  the  employee's  negligence  unless  this  was  wilful  and 
with  intent  to  cause  the  injury  or  was  the  result  of  intoxica- 
tion, or  because  the  injury  was  caused  by  the  negligence  of  a 
co-employee.  But  it  is  clear,  as  we  have  pointed  out  in  New 
York  Central  R.  R.  Co.  v.  White,  No.  230,  decided  this  day  (243 
U.  S.  188,  61  L.  Ed.  667,  13  N.  C.  C.  A.  943),  that  the  employer 
has  no  vested  right  to  have  these  so-called  common-law  defenses 
perpetuated  for  his  benefit,  and  that  the  Fourteenth  Amend- 
ment does  not  prevent  a  state  from  establishing  a  system  of 
22 


ELECTION,  REJECTION  ft  CONSTITUTIONALITY  OP  ACTS.  §4 

workmen's  compensation  without  the  consent  of  the  employer, 
incidentally  abolishing  the  defenses  referred  to. 

"The  same  may  be  said  as  to  the  provision  that  in  an  action 
against  an  employer  who  has  rejected  the  act  it  shall  be  pre- 
sumed that  the  injury  was  the  direct  result  of  his  negligence, 
and  that  he  must  assume  the  burden  of  proof  to  rebut  the  pre- 
sumption of  negligence.  In  addition,  we  may  repeat  that  the 
establishment  of  presumptions,  and  of  rules  respecting  the  bur- 
den of  proof,  is  clearly  within  the  domain  of  the  state  govern- 
ments, and  that  a  provision  of  this  character,  not  unreasonable 
in  itself  and  not  conclusive  of  the  rights  of  the  party,  does  not 
constitute  a  denial  of  due  process  of  law.  Mobile,  etc.  R.  R.  v. 
Turnipseed,  219  U.  S.  35,  42  (55  L.  Ed.  78,  2  N!  C-  C.  A.  243,  32 
L.  R.  A.  (N.  S.)  226,  Ann.  Cas.  1912A,  463). 

"Objection  is  made  to  the  provision  in  section  3,  that  where 
an  employee  elects  to  reject  the  act  he  shall  state  in  an  affidavit 
who,  if  anybody,  requested  or  suggested  that  he  should  do  so, 
and  if  it  be  found  that  the  employer  or  his  agent  made  such  a 
request  or  suggestion,  the  employee  shall  be  conclusively  pre- 
sumed to  have  been  unduly  influenced,  and  his  rejection  of  the 
act  shall  be  void.  Passing  the  point  that  appellant  is  an  em- 
ployer and  will  not  be  heard  to  raise  constitutional  objections 
that  are  good  only  from  the  standpoint  of  employees  (Hatch 
v.  Reardon,  204  U.  S.  152,  160  (51  L.  Ed.  415,  9  Ann.  Cas.  736) ; 
Rosenthal  v.  New  York,  226  U.  S.  260,  271  (57  L.  Ed.  212,  Ann. 
Cas.  1914B  71);  Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S. 
53],  544  (58  L.  Ed.  713) ;  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S. 
57],  576  (58  L.  Ed.  713,  7  N.  C.  C.  A.  570) ;  Hendrick  v.  Mary- 
land, 235  U.  S.  610,  621  (59  L.  Ed.  385),  it  is  sufficient  to  say 
that  the  criticised  provision  evidently  is  intended  to  safeguard 
the  employee  from  all  influences  that  might  be  exerted  by  the 
employer  to  bring  about  his  dissent  from  the  compensation 
features  of  the  act.  The  lawmaker  no  doubt  entertained  the 
view  that  the  act  was  more  beneficial  to  employees  than  the 
common-law  rules  of  employer's  liability,  and  that  it  was  high- 
ly improbable  an  employee  would  reject  the  new  arrangement 
of  his  own  free  will.  The  provision  is  a  permissible  regulation 
in  aid  of  the  general  scheme  of  the  act. 

23 


§4  WORKMEN'S  COMPENSATION  LAWS. 

"It  is  said  that  there  is  a  denial  of  due  process  in  that  part 
of  the  act  which  provides  for  the  adjustment  of  the  compensa- 
tion where  the  employer  accepts  its  provisions.  In  case  of  dis- 
agreement between  an  employer  and  an  injured  employee, 
either  party  may  notify  the  Industrial  Commissioner,  who  there- 
upon shall  call  for  the  formation  of  an  arbitration  committee 
consisting  of  three  persons,  with  himself  as  chairman.  The 
committee  is  to  make  such  inquiries  and  investigations  as  it 
shall  deem  necessary,  and  its  report  is  to  be  filed  with  the  In- 
dustrial Commissioner.  If  a  claim  for  review  is  filed,  the  com- 
missioner, and  not  the  committee,  is  to  hear  the  parties,  may 
hear  evidence  in  regard  to  pertinent  matters,  and  may  revise 
the  decision  of  the  committee  in  whole  or  in  part,  or  refer  the 
matter  back  to  the  committee  for  further  findings  of  fact.  And 
any  party  in  interest  may  present  the  order  or  decision  of  the 
commissioner,  or  the  decision  of  an  arbitration  committee  from 
which  no  claim  for  review  has  been  filed,  to  the  district  court 
of  the  county  in  which  the  injury  occurred,  whereupon  the 
court  shall  render  a  decree  in  accordance  therewith,  having  the 
same  effect  as  if  it  were  rendered  in  a  suit  heard  and  deter- 
mined by  the  court,  except  that  there  shall  be  no  appeal  upon 
questions  of  fact  or  where  the  decree  is  based  upon  an  order  or 
decision  of  the  commissioner  which  has  not  been  presented  to 
the  court  within  10  days  after  the  notice  of  the  filing  thereof 
by  the  commissioner.  With  respect  to  these  provisions,  the  Su- 
preme Court  of  Iowa  held  (154  N.  W.  1064)  :  'Appeal  is  pro- 
vided from  the  decree  enforcing  the  award  on  which  all  save 
pure  questions  of  fact  may  be  reviewed.  *  *  *  "We  hold  that 
though  the  act  does  not  in  terms  provide  for  judicial  review, 
except  by  said  appeal,  the  statute  does  not  take  from  the  court 
all  jurisdiction  in  the  premises.  *  *  *  We  are  in  no  doubt  that 
the  very  structure  of  the  law  of  the  land,  and  the  inherent 
power  of  the  courts,  would  enable  them  to  interfere,  if  what 
we  have  defined  to  be  the  jurisdiction  conferred  upon  the  ar- 
bitration committee  were  by  it  exceeded — could  inquire  whether 
the  act  was  being  enforced  against  one  who  has  rejected  it, 
whether  the  claiming  employee  was  an  employee,  whether  he 
was  injured  at  all,  whether  his  injury  was  one  arising  out  of 
24 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

such  employment,  whether  it  was  due  to  intoxication  of  the 
servant,  or  self-inflicted,  or,  acceptance  being  conceded,  into 
whether  an  award  different  from  the  statute  schedules  has  been 
made,  into  whether  the  award  were  (was)  tainted  with  fraud 
on  part  of  the  prevailing  party,  or  of  the  arbitration  committee, 
and  into  whether  that  body  attempted  judicial  functions,  in 
violation  of  or  not  granted  by  the  act.'  Thus  it  will  be  seen 
that  the  act  prescribes  the  measure  of  compensation  and  the 
circumstances  under  which  it  is  to  be  made,  and  establishes 
administrative  machinery  for  applying  the  statutory  measure 
to  the  facts  of  each  particular  case;  provides  for. a  hearing  be- 
fore an  administrative  tribunal,  and  for  judicial  review  upon 
all  fundamental  and  jurisdictional  questions.  This  disposes  of 
the  contention  that  the  administrative  body  is  clothed  with  an 
arbitrary  and  unbridled  discretion,  inconsistent  with  a  proper 
conception  of  due  process  of  law.  Plymouth  Coal  Co.  v.  Penn- 
sylvania, 232  U.  S.  531,  545  (58  L.  Ed.  713). 

"Objection  is  made  that  the  act  dispenses  with  trial  by  jury. 
But  it  is  settled  that  this  is  not  embraced  in  the  rights  secured 
by  the  Fourteenth  Amendment.  Walker  v.  Sauvinet,  92  U.  S. 
90  (23  L.  Ed.  678) ;  Frank  v.  Mangum,  237  U.  S.  309,  340  (59 
L.  Ed.  569) ;  New  York  Central  E.  R.  Co.  v.  White  (243  U.  S. 
188,  61  L.  Ed.  667,  13  N.  C.  C.  A.  943). 

"It  is  elaborately  argued  that,  aside  from  the  Fourteenth 
Amendment,  the  inhabitants  of  the  State  of  Iowa  are  entitled 
to  this  right,  because  it  was  guaranteed  by  the  Ordinance  of  July 
13,  1787.  for  the  government  of  the  Northwest  Territory  (1  Stat. 
51),  in  these  terms:  'The  inhabitants  of  the  said  territory  shall 
always  be  entitled  to  the  benefits  of  *  *  *  the  trial  by  jury.' 
The  argument  is  rested,  first,  upon  the  ground  that  Iowa  was  a 
part  of  the  Noithwest  Territory.  This  is  manifestly  untenable, 
since  that  territory  was  bounded  on  the  west  by  the  Mississippi 
River,  and  Iowa  was  not  part  of  it,  but  of  the  Louisiana  Pur- 
chase. But,  secondly,  it  is  contended  that  the  guaranties  con- 
tained in  the  Ordinance  were  extended  to  Iowa  by  the  Act  of 
Congress  approved  June  12,  1838,  establishing  a  territorial  gov- 
ernment (ch.  96,  sec.  12;  5  Stat.  235,  239),  and  by  the  acts  for 
the  admission  of  the  state  into  the  Union.  (Acts  of  March  3, 

25 


§4  WORKMEN'S  COMPENSATION  LAWS. 

1845,  ch.  48  and  76;  5  Stat.  742,  789;  Act  of  August  4,  1846, 
ch.  82;  9  Stat.  52;  Act  of  December  28,  1846,  ch.  1;  9  Stat.  117; 
1  Poor,  Chart.  &  Const.,  331,  534,  535,  551.)  This  is  easily  dis- 
posed of.  The  Act  of  1838  was  no  more  than  a  regulation  like 
any  such  regulation;  and  the  act  for  admitting  the  state,  so  far 
from  perpetuating  any  particular  institution  previously  estab- 
lished, admitted  it  'on  an  equal  footing  with  the  original  states 
in  all  respects  whatsoever.'  The  regulation,  although  embrac- 
ing provisions  of  the  ordinance  declared  to  be  unalterable  unless 
by  common  consent,  had  no  further  force  in  Iowa  after  its  ad- 
mission as  a  state  and  the  adoption  of  a  State  Constitution,  thai; 
other  acts  of  congress  for  the  government  of  the  territory.  Ali 
were  superseded  by  the  State  Constitution.  Pernoli  v.  First 
Municipality,  3  How.  589,  610  (11  L.  Ed.  739) ;  Coyle  v.  Okla- 
homa, 221  U.  S.  559,  567,  570  (55  L.  Ed.  853) ;  Cincinnati  v. 
Louis.  &  Nash.  R.  E.  Co.,  223  U.  S.  390,  401  (56  L.  Ed.  481). 
The  State  of  Iowa,  therefore,  is  as  much  at  liberty  as  any  other 
state  to  abolish  or  limit  the  right  of  trial  by  jury;  or  to  pro- 
vide for  a  waiver  of  that  right,  as  it  has  done  by  the  act  under 
consideration. 

"Section  5  is  singled  out  for  criticism  as  denying  to  employers 
the  equal  protection  of  the  laws.  It  reads:  'Where  the  em- 
ployer and  employee  elect  to  reject  the  terms,  conditions  and 
provisions  of  this  act,  the  liability  of  the  employer  shall  be  the 
same  as  though  the  employee  had  not  rejected  the  terms,  con- 
ditions and  provisions  thereof. '  As  we  have  shown,  if  the  em- 
ployer rejects 'the  act  he  remains  liable  for  personal  injury  sus- 
tained by  an  employee,  arising  out  of  and  in  the  usual  course  of 
the  employment,  and  is  not  to  escape  by  showing  that  he  had 
exercised  reasonable  care  in  selecting  competent  employees  in 
the  business,  or  that  the  employee  had  assumed  the  risk,  or  that 
the  injury  was  caused  by  the  negligence  of  a  co-employee,  or 
even  by  showing  that  the  plaintiff  was  negligent,  unless  such 
negligence  was  willful  and  with  intent  to  cause  the  injury  or 
was  the  result  of  intoxication  on  the  part  of  the  injured  party. 
This  is  the  result  whether  the  employee  on  his  part  accepts  or 
rejects  the  act.  But  where  the  employee  rejects  it  and  the  em- 
ployer accepts  it,  then,  by  section  3b,  'the  employer  shall  have 
26 


ELECTION,  REJECTION   A  CONSTITUTIONALITY  OP  ACTS.  §4 

the  right  to  plead  and  rely  upon  any  and  all  defenses  including 
those  at  common  law,  and  the  rules  and  defenses  of  contribu- 
tory negligence,  assumption  of  risk  and  fellow-servant  shall  ap- 
ply and  be  available  to  the  employer  as  by  statute  authorized 
unless  otherwise  provided  in  this  act,'  with  a  proviso  not  ma- 
terial to  the  present  point.  We  cannot  say  that  there  is  here  an 
arbitrary  classification  within  the  inhibition  of  the  'equal  pro- 
tection' clause  of  the  Fourteenth  Amendment.  All  employers 
are  treated  alike,  and  so  are  all  employees;  and  if  there  be  some 
difference  as  between  employer  and  employee  respecting  the  in- 
ducements that  are  held  out  for  accepting  the  compensation 
features  of  the  act,  it  goes  no  further  than  to  say  that  if  neither 
party  is  willing  to  accept  them  the  employer's  liability  shall  not 
be  subject  to  either  of  the  several  defenses  referred  to.  As  al- 
ready shown,  the  abolition  of  such  defenses  is  within  the  power 
of  the  state,  and  the  legislation  cannot  be  condemned  when  that 
power  has  been  qualifiedly  exercised,  without  unreasonable  dis- 
crimination." 7 

In  sustaining  the  constitutionality  of  the  Washington  Act 
which  is  compulsory  and  provides  also  a  monopolistic  and  com- 
pulsory state  insurance  plan,  the  Supreme  court  of  the  United 
States  said:  "The  only  serious  question  is  that  which  is  raised 
under  the  'due  process  of  law'  and  'equal  protection'  clauses  of 
the  Fourteenth  Amendment.  It  is  contended  that  since  the  act 
unconditionally  requires  employers  in  the  enumerated  occupa- 
tions to  make  payments  to  a  fund  for  the  benefit  of  employees, 
without  regard  to  any  wrongful  act  of  the  employer,  he  is  de- 
prived of  his  property,  and  of  his  liberty  to  acquire  property, 
without  compensation  and  without  due  process  of  law.  It  is 
pointed  out  that  the  occupations  covered  include  many  that  are 
private  in  their  character,  as  well  as  others  that  are  subject  to 
regulation  as  public  employments,  and  it  is  argued  that  with 
respect  to  private  occupations  (including  those  of  plaintiff  in 
error)  a  compulsory  compensation  act  does  not  concern  the  in- 
terests of  the  public  generally,  but  only  the  particular  interests 

7.  Hawkins  v.  Bleakley,  243  U.  S.  210,  61  L.  Ed.  678,  37  Supp.  Ct  Rep. 
255,  13  N.  C.  C.  A.  959. 

27 


§4  WORKMEN'S  COMPENSATION  LAWS. 

of  the  employees,  and  is  unduly  oppressive  upon  employers  and 
arbitrarily  interferes  with  and  restricts  the  management  of 
private  business  operations. 

"The  statute,  although  approved  March  14,  1911,  took  effect 
as  between  employers  and  workmen  on  October  1st  in  that  year, 
actions  pending  and  causes  of  action  existing  on  September 
30th  being  expressly  saved.  It  therefore  disturbed  no  vested 
rights,  its  effect  being  confined  to  regulating  the  relation  of  em- 
ployer and  employee  in  the  hazardous  occupations  in  futuro.  *  *  * 

"Whether  this  legislation  be  regarded  as  a  mere  exercise  of 
the  power  of  regulation,  or  as  a  combination  of  regulations  and 
taxation,  the  crucial  inquiry  under  the  Fourteenth  Amendment 
is  whether  it  clearly  appears  to  be  not  a  fair  and  reasonable  ex- 
ertion of  governmental  power,  but  so  extravagant  or  arbitrary 
as  to  constitute  an  abuse  of  power.  All  reasonable  presump- 
tions are  in  favor  of  its  validity,  and  the  burden  of  proof  and 
argument  is  upon  those  who  seek  to  overthrow  it.  Erie  R.  R. 
Co.  v.  Williams,  233  U.  S.  685,  699  (58  L.  Ed.  1155).  In  the 
present  case  it  will  be  proper  to  consider:  (1)  Whether  the 
main  object  of  the  legislation  is,  or  reasonably  may  be  deemed 
to  be,  of  general  and  public  moment,  rather  than  of  private  and 
particular  interest,  so  as  to  furnish  a  just  occasion  for  such  in- 
terference with  personal  liberty  and  the  right  of  acquiring 
property  as  necessarily  must  result  from  carrying  it  into  effect. 
(2)  Whether  the  charges  imposed  upon  employers  are  reason- 
able in  amount,  or,  on  the  other  hand,  so  burdensome  as  to  be 
manifestly  oppressive.  And  (3)  whether  the  burden  is  fairly 
distributed,  having  regard  to  the  causes  that  give  rise  to  the 
need  for  the  legislation. 

"As  to  the  first  point:  The  authority  of  the  states  to  enact 
such  laws  as  reasonably  are  deemed^  to  be  necessary  to  promote 
the  health,  safety,  and  general  welfare  of  their  people,  carries 
with  it  a  wide  range  of  judgment  and  discretion  as  to  what 
matters  are  of  sufficiently  general  importance  to  be  subjected 
to  state  regulation  and  administration.  Lawton  v.  Steele,  152 
U.  S.  133,  136  (38  L.  Ed.  385).  'The  police  power  of  a  state  is 
as  broad  and  plenary  as  its  taxing  power,'  Kidd  v.  Pearson,  128 
28 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

U.  S.  1,  26  (32  L.  Ed.  346).    In  Barbier  v.  Connolly,  113  U.  S. 
27,  31   (28  L.  Ed.  923),  the  court,  by  Mr.  Justice  Field  said: 
'Neither  the   (Fourteenth)   Amendment — broad  and  comprehen- 
sive as  it  is — nor  any  other  amendment,  was  designed  to  inter- 
fere with  the  power  of  the  state,  sometimes  termed  its  police 
power,   to  prescribe  regulations  to   promote  the  health,  peace, 
morals,  education,  and  good  order  of  the  people,  and  to  legis- 
late so  as  to  increase  the  industries  of  the  state,  develop  its  re- 
sources, and"  add  to  its  wealth  and  prosperity.     From  the  very 
necessities  of  society,  legislation  of  a  special  character,  having 
these  objects  in  view,   must   often  be   had   in   certain   districts, 
such  as  for  draining  marshes  and  irrigating  arid  plains.    Special 
burdens  are  often  necessary  for  general  benefits — for  supplying 
water,  preventing  fires,  lighting  districts,  cleaning  streets,  open- 
ing parks,  and  many  other  objects,    Regulations  for  these  pur- 
poses may  press  with  more  or  less  weight  upon  one  than  upon 
another,  but  they  are  designed,  not  to  impose  unequal  or  un- 
necessary restrictions  upon  any  one,  but  to  promote,  with  as 
little   individual   inconvenience    as   possible,   the    general    good. 
Though,  in  many  respects,  necessarily  special  in  their  character, 
they  do  not  furnish  just  ground  of  complaint  if  they  operate 
alike  upon  all  persons  and  property    under    the    same    circum- 
stances and  conditions.     Class  legislation,  discriminating  against 
some  and  favoring  others,  is  prohibited,  but  legislation  which, 
in  carrying  out  a  public  purpose,  is  limited  in  its  application, 
if  within  the  sphere  of  its  operation  it  affects  alike  all  persons 
similarly  situated,   is  not  within   the  amendment.'  It  seems  to 
us  that  the  considerations  to  which  we  have  adverted  in  X»>\v 
York  Central  R.  R.  Co.  v.  White,  supra,  as  showing  that  the 
Workmen's  Compensation  Law  of  New  York  is  not  to  be  deemed 
arbitrary    and    unreasonable    from    the    standpoint    of   natural 
justice,   are   sufficient   to  support  the   State  of  Washington   in 
concluding  that  the  matter  of  compensation  for  accidental  in- 
juries with  resulting  loss  of  life  or  earning  capacity  of  men  era- 
ployed  in  hazardous  occupations  is  of  sufficient  public  moment 
to  justify  making  the  entire  matter  of  compensation  a  public 
concern,  to  be  administered  through  state  agencies.     Certainly 
the  operation  of  industrial  establishments  that  in  the  ordinary 

29 


§4  WORKMEN'S  COMPENSATION  LAWS. 

course  of  things  frequently  and  inevitably  produce  disabling  or 
mortal  injuries  to  the  human  beings  employed  is  not  a  matter 
of  wholly  private  concern.  It  hardly  would  be  questioned  that 
the  state  might  expend  public  moneys  to  provide  hospital  treat- 
ment', artificial  limbs,  or  other  like  aid  to  persons  injured  in  in- 
dustry, and  homes  or  support  for  the  widows  and  orphans  of 
those  killed.  Does  direct  compensation  stand  on  a  less  secure 
ground?  A  familiar  exercise  of  state  power  is  the  grant  of 
pensions  to  disabled  soldiers  and  to  the  widows  and  dependents 
of  those  killed  in  war.  Such  legislation  usually  is  justified  as 
fulfilling  a  moral  obligation  or  as  tending  to  encourage  the  per- 
formance of  the  public  duty  of  defense.  But  is  the  state 
powerless  to  compensate,  with  pensions  or  otherwise,  those  who 
are  disabled,  or  the  dependents  of  those  whose  lives  are  lost, 
in  the  industrial  occupations  that  are  so  necessary  to  develop 
the  resources  and  add  to  the  wealth  and  prosperity  of  the  state? 
A  machine  as  well  as  a  bullet  may  produce  a  wound,  and  the 
disabling  effect  may  be  the  same.  In  a  recent  case,  the  Supreme 
Court  of  Washington  said:  'Under  our  statutes  the  workman 
is  the  soldier  of  organized  industry  accepting  a  kind  of  pension 
in  exchange  for  absolute  insurance  on  his  master's  premises.' 
Stertz  v.  Industrial  Insurance  Commission,  158  Pac.  256,  263. 
It  is  said  that  the  compensation  or  pension  under  this  law  is 
not  confined  to  those  who  are  left  without  means  of  support. 
This  is  true.  But  is  the  state  powerless  to  succor  the  wounded 
except  they  be  reduced  to  the  last  extremity  ?  Is  it  debarred  from 
•compensating  an  injured  man  until  his  own  resources  are  first 
exhausted?  This  would  be  to  discriminate  against  the  thrifty 
and  in  favor  of  the  improvident.  The  power  and  discretion  of 
the  state  are  not  thus  circumscribed  by  the  Fourteenth  Amend- 
ment. 

"Secondly,  is  the  tax  or  imposition  so  clearly  excessive  as  to 
be  a  deprivation  of  liberty  or  property  without  due  process  of 
law?  If  not  warranted  by  any  just  occasion,  the  least  imposi- 
tion is  oppressive.  But  that  point  is  covered  by  what  has  been 
said.  Taking  the  law,  therefore,  to  be  justified  by  the  public 
nature  of  the  object,  whether  as  a  tax  or  as  a  regulation,  the 
question  Avhether  the  charges  are  excessive  remains.  Upon  this 
30 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

point  no  particular  contention  is  made  that  the  compensation 
allowed  is  unduly  large;  and  it  is  evident  that  unless  it  be  so 
the  corresponding  burden  upon  the  industry  cannot  be  regarded 
as  excessive  if  the  state  is  at  liberty  to  impose  the  entire  burden 
upon  the  industry.  With  respect  to  the  scale  of  compensation, 
we  repeat  what  we  have  said  in  New  York  Central  R.  R.  Co. 
v.  White,  supra  (ante),  that  in  sustaining  the  law  we  do  not 
intend  to  say  that  any  scale  of  compensation,  however  insig- 
nificant on  the  one  hand  or  onerous  on  the  other,  would  be 
supportable,  and  that  any  question  of  that  kind  may  be  met 
when  it  arises. 

"Upon  the  third  question — the  distribution  of  the  burden — 
there  is  no  criticism  upon  the  act  in  its  details.  As  we  have 
seen,  its  fourth  section  prescribes  the  schedule  of  contribution, 
dividing  the  various  occupations  into  groups,  and  imposing 
various  percentages  evidently  intended  to  be  proportioned  to 
the  hazard  of  the  occupations  in  the  respective  groups.  Cer- 
fjiinly  the  application  of  a  proper  percentage  to  the  pay  roll  of 
the  industry  cannot  be  deemed  an  arbitrary  adjustment,  in  view 
of  the  legislative  declaration  that  it  is  'deemed  the  most  accu- 
rate method  of  equitable  distribution  of  burden  in  proportion  to 
relative  hazard.'  Tt  is  a  matter  of  common  knowledge  that  in 
the  practice  of  insurers  the  pay  roll  frequently  is  adopted  as  the 
basis  for  computing  the  premium.  The  percentages  seem  to  be 
high:  but  when  these  are  taken  in  connection  with  the  provisions 
requiring  accounts  to  be  kept  with  each  industry  in  accordance 
with  the  classification,  and  declaring  that  no  class  shall  be  liable 
for  the  depletion  of  the  accident  fund  from  accidents  happening 
in  any  other  class,  and  that  any  class  having  sufficient  funds  to 
its  Credit  at  the  end  of  the  first  three  months  or  any  month  there- 
after is  not  to  be  called  upon,  it  is  plain  that,  after  the  initial 
payment,  which  may  be  regarded,  as  a  temporary  reserve,  the 
assessments  will  be  limited  to  the  amounts  necessary  to  meet 
actual  losses.  As  further  rebutting  the  suggestion  that  the  im- 
position is  exorbitant  or  arbitrary,  we  should  accept  the  dec- 
laration of  intent  that  the  fund  shall  ultimately  become  neither 
more  or  less  than  self-supporting,  and  that  the  rates  are  subject 

31 


§4  WORKMEN'S  COMPENSATION  LAWS. 

to  future  adjustment  by  the  legislature  and  the  classifications 
to  rearrangement  according  to  experience,  as  plain  evidence 
of  an  intelligent  effort  to  limit  the  burden  to  the  requirements 
of  each  industry. 

"We  may  conveniently  answer  at  this  point  the  objection 
that  the  act  goes  too  far  in  classifying  as  hazardous  large  num- 
bers of  occupations  that  are  not  in  their  nature  hazardous.  It 
might  be  sufficient  to  say  that  this  is  no  concern  of  plaintiff  in 
error,  since  it  is  not  contended  that  its  business  of  logging  tim- 
ber, operating  a  logging  railroad,  and  operating  a  sawmill  with 
power-driven  machinery,  or  either  of  them,  are  non-hazardous. 
Plymouth  Coal  Co.  v.  Pennsylvania,  232  IT.  S.  531,  544  (58  L. 
Ed.  713).  But  further,  the  question  whether  any  of  the  indus- 
tries enumerated  in  section  4  is  non-hazardous  will  be  proved 
by  experience,  and  the  provisions  of  the  act  themselves  give 
sufficient  assurance  that  if  in  any  industry  there  be  no  accident 
there  will  be  no  assessment,  unless  for  expenses  of  adminis- 
tration. It  is  true  that,  while  the  section  as  originally  enacted 
provided  for  advancing  the  classification  of  risks  and  premium 
rates  in  a  particular  establishment  shown  by  experience  to  be 
unduly  dangerous  because  of  poor  or  careless  management, 
there  was  no  corresponding  provision  for  reducing  a  particular 
industry  shown  by  experience  to  be  included  in  a  class  which 
imposed  upon  it  too  high  a  rate.  This  was  remedied  by  the 
amendment  of  1915,  quoted  in  the  margin,  above,  which,  how- 
ever, cannot  affect  the  decision  of  the  present  case.  But  in  the 
absence  of  any  particular  showing  of  erroneous  classification — 
and  there  is  none — the  evident  purpose  of  the  original  act  to 
classify  the  various  occupations  according  to  the  respective 
hazard  of  each  is  sufficient  answer  to  any  contention  of  improper 
distribution  or  the  burden  amongst  the  industries  then- selves. 

"There  remains,  therefore,  only  the  contention  that  it  is 
inconsistent  with  the  due  process  and  equal  protection  clauses 
of  the  Fourteenth  Amendment  to  impose  the  entire  cost  o£  acci- 
dent loss  upon  the  industries  in  which  the  losses  arise.  But  if, 
as  the  Legislature  of  Washington  has  declared  in  tlie  first  sec- 
tion of  the  act,  injuries  in  such  employments  have  become  fre- 
,32 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §4 

quent  and  inevitable,  and  if,  as  we  have  held  in  New  York  Cen- 
tral R.  R.  Co.  v.  White,  supra,  the  state  is  at  liberty,  notwith- 
standing the  Fourteenth  Amendment,  to  disregard  questions  of 
fault  in  arranging  a  system  of  compensation  for  such  injuries, 
we  are  unable  to  discern  any  ground  in  natural  justice  or  funda- 
mental right  that  prevents  the  state  from  imposing  the  entire 
burden  upon  the  industries  that  occasion  the  losses.  The  act  iu 
affect  puts  these  hazardous  occupations  in  the  category  of  dan- 
gerous agencies,  and  requires  that  the  losses  shall  be  reckoned 
as  a  part  of  the  cost  of  the  industry,  just  like  the  pay  roll,  the 
repair  account,  or  any  other  item  of  cost.  The  plan  of  assess- 
•ment  insurance  is  closely  followed,  and  none  more  just  has  been 
suggested  as  a  means  of  distributing  the  risk  and  burden  of 
losses  that  inevitably  must  occur,  in  spite  of  any  care  that  may 
be  taken  to  prevent  them. 

"We  are  clearly  of  the  opinion  that  a  state,  in  the  exercise  of 
its  power  to  pass  such  legislation  as  reasonably  is  deemed  to  be 
necessary  to  promote  the  health,  safety,  and  general  welfare  of 
its  people,  may  regulate  the  carrying  on  of  industrial  occu-- 
pations  that  frequently  and  inevitably  produce  personal  injuries 
and  disability  with  consequent  loss  of  earning  power  among 
the  men  and  women  employed,  and,  occasionally  loss  of  life  oif 
those  who  have  wives  and  children  or  relations  dependent  upon 
them  for  suport,  and  may  require  that  these  human  losses  shall 
be  charged  against  the  industry,  either  directly,  as  is  done  in 
the  case  of  the  act  sustained  in  New  York  Central  R.  R.  Co.  v. 
White,  supra,  or  by  publicly  administering  the  compensation 
and  distributing  the  cost  among  the  industries  affected  by 
means  of  a  reasonable  system  of  occupation  taxes.  The  act 
cannot  be  deemed  oppressive  to  any  class  of  occupation,  provided 
the  scale  of  compensation  is  reasonable,  unless  the  loss  of  hu- 
man life  and  limb  is  found  in  experience  to  be  so  great  that  if 
charged  to  the  industry  it  leaves  no  sufficient  margin  for  rea- 
sonable profits.  But  certainly,  if  any  industry  involves  so  great 
a  human  wastage  as  to  leave  no  fair  profit  beyond  it,  the  state 
is  at  liberty,  in  the  interest  of  the  safety  and  welfare  of  its 
people,  to  prohibit  such  an  industry  altogether. 

33 
W.  C.— 3 


§4  WORKMEN'S  COMPENSATION  LAWS. 

"To  the  criticism  that  carefully  managed  plants  are  in  effect 
required  to  contribute  to  make  good  the  losses  arising  through 
the  negligence  of  their  competitors,  it  is  sufficient  to  say  that 
the  act  recognizes  that  no  management,  however  careful,  can 
afford  immunity  from  personal  injuries  to  employees  in  the 
hazardous  occupations,  and  prescribes  that  negligence  is  not  to 
be  determinative  of  the  question  of  the  responsibility  of  the 
employer  or  the  industry.  Taking  the  fact  that  accidental  in- 
juries are  inevitable,  in  connection  with  the  impossibility  of 
foreseeing  when,  or  in  what  particular  plant  or  industry  they 
will  occur,  we  deem  that  the  state  acted  within  its  power  in  de- 
claring that  no  employer  should  conduct  such  an  industry  with- 
out making  stated  and  fairly  apportioned  contributions  adequate 
to  maintain  a  public  fund  for  indemnifying  injured  employees 
and  the  dependents  of  those  killed,  irrespective  of  the  partic- 
ular plant  in  which  the  accident  might  happen  to  occur.  In 
short,  it  cannot  be  deemed  arbitrary  or  unreasonable  for  the 
state,  instead  of  imposing  upon  the  particular  employer  entire 
responsibility  for  losses  occurring  in  his  own  plant  or  work,  to 
impose  the  burden  upon  the  industry  through  a  system  of  oc- 
cupation taxes  limited  to  the  actual  losses  occurring  in  the  re- 
spective classes  of  occupation.  *  *  *  Perhaps  a  word  should 
be  said  respecting  a  clause  in  section  4  which  reads  as  follows: 
'It  shall  be  lawful  for  the  employer  to  deduct  or  obtain  (sic) 
any  part  of  the  premium  required  by  this  section  to  be  by  him 
paid  from  the  wages  or  earnings  of  his  workmen  or  any  of  them, 
and  the  making  or  attempt  to  make  any  such  deductions  shall 
be  a  gross  misdemeanor.'  If  this  were  to  be  construed  so  broad- 
ly as  to  prohibit  employers  and  employees,  in  agreeing  upon 
wages  and  other  terms  of  employment,  from  taking  into  con- 
sideration the  fact  that  the  employer  was  a  contributor  to  the 
state  fund,  and  the  resulting  effect  of  the  act  upon  the  rights 
of  the  parties,  it  would  be  open  to  serious  question  whether  as 
thus  construed  it  did  not  interfere  to  an  unconstitutional  ex- 
tent with  their  freedom  of  contract.  So  far  as  we  are  aware 
the  clause  has  not  been  so  contrued,  and  on  familiar  principles 
we  will  not  assume  in  advance  that  a  construction  will  be  adopt- 
ed such  as  to  bring  the  law  into  conflict  with  the  Federal  Consti- 
34 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §5 

tution.     Uai-htel  v.  Wilson,  204  U.  S.  36,   (51  L.  Ed.  357) ;  Ply- 
mouth  Coal  Co.   v.   Pennsylvania,  232  U.  S.  531,  546  (58  L.  Ed. 

715).  "8 

§  5.  Constitutionality  of  Miscellaneous  Provisions. — The 
subrogation  of  the  employer  to  the  rights  of  the  injured  em- 
ployee against  the  negligent  third  person  is  not  unconstitution- 
al.9 

The  provision  of  the  New  York  Act  allowing  compensation 
for  facial  disfigurement  to  an  amount  not  .to  exceed  $3,500.00 
does  not  deprive  employers,  ordered  to  pay  such  an  award,  of 
their  property  without  due  process  of  law  in  contravention  of 
the  Fourteenth  Amendment,  the  provision  not  being  unrea- 
sonable, arbitrary,  or  contrary  to  fundamental  right  while  the 
allowance  prescribed  does  not  exceed  the  constitutional  limita- 
tions on  state  power.10 

The  provision  of  the  Colorado  Act  providing  for  the  assess- 
ment of  premiums  against  public  employers  to  provide  a  fund 
for  the  benefit  of  injured  employees  is  constitutional,  being 
a  proper  exercise  of  the  police  power  of  the  state  in  caring  for 
public  needs.11 

In  discussing  the  constitutionality  of  the  North  Dakota  Act 
the  Supreme  Court  said:  "It  is  within  the  province  of  the  Legis- 
lature, in  the  proper  exercise  of  its  police  power,  as  a  matter  of 
public  policy,  to  declare  that  there  is  an  element  of  hazard  or 
of  danger  in  employment  in  the  modern  business  world,  and  this 
court,  upon  construction  of  its  definition  in  that  regard,  will 
not  presume  that  the  term  'hazardous'  must  necessarily  refer 

8.  Mountain  Timber  Co.  v.  State  of  Washington,  243  U.  S.  219,  61  L.  Ed. 
685,  13  N.  C.  C.  A.  927,  37  Sup.  Ct.  260. 

9.  Friebel  v.  Chicago  City  Ry.  Co.  et  al..  280  111.  76,  117  N.  E.  467,  16 
N.  C.  C.  A.  390;    Western  States  Gas  and  Electric  Co.  v.  Bayslde  Lbr.  Co., 
—  Cal.  — ,  187  Pac.  735,  5  W.  C.  L.  J.  649  (1920). 

10.  New  York  Cent.  R.  Co.  v.  Bianc,  —  U.  S.  — ,  40  Sup.  Ct.  Rep.  44, 
5  W.  C.  L.  J.  3;    Sweeting  v.  American  Knife  Co..  226  N.  Y.  199,  123  N. 
E.  82,  4  W.  C.  L.  J.  125,  5  W.  C.  L.  J.  3. 

11.  School  Dist.  No.  1  v.  Indus.  Comm.  of  Colo.,  —  Colo.  — ,  185  Pac.  348, 
5  W.  C.  L.  J.  163. 

35 


§5  WORKMEN'S  COMPENSATION  LAWS. 

to  employments  that  have  heretofore  been  termed  hazardous, 
by  reason  of  extra  features  of  hazard  inherent  to  the  nature  of 
occupation.  The  Legislature,  within  the  exercise  of  its  police 
powers,  in  enacting  a  compulsory  Compensation  Act,  may  abro- 
gate common-law  defenses,  and  impose  liability  without  fault, 
substituting  new  rules  of  legal  procedure  in  place  of  the  old, 
so  long  as  its  action  in  that  regard  is  not  arbitrary,  unjust,  or 
unreasonable.12 

Limiting  the  application  of  the  Arizona  Act  to  the  injured 
employee  engaged  in  manual  and  mechanical  labor  is  a  proper 
exercise  of  the  legislative  power  under  the  Arizona  Consti- 
tution.18 

Making  rights  and  remedies  under  the  Louisiana  Act  ex- 
clusive, does  not  undertake  to  fix  the  price  of  manual  labor 
contrary  to  the  state  constitution.14 

The  provision  of  the  New  York  Act  extending  its  benefits  to 
maratime  work  is  not  in  violation  of  the  Federal  Constitution.15 
The  California  Supreme  Court  came  to  a  contrary  conclusion,16 

12.  State  ex  rel.  Amerland  v.  Hagan,  —  N.  Dak.  — ,  175  N.  W.  372, 
5  W.  C.  L.  J.  446;    Matthiessen  &  Hegler  Zinc  Co.  v.  Indus.  Bd.,  —  111. 
— ,  120  N  E.  249,  2  W.  C.  L.  J.  875;     Superior  &  Pittsburg  Copper  Co. 
v.  Davidovich,  19  Ariz.  402,  171  Pac.  127,  1  W.  C.  L.  J.  727,  16  N.  C.  C. 
A.  801;    Sayles  v.  Poley,  38  R.  I.  489,  96  Atl.  340,  12  N.  C.  C:  A.  949;    West- 
ern Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398,  10  N.  C.  C.  A. 
1;    State  Indus.  Comm.  v.  Voorhees,  —  App.  Div.  — ,  184  N.  Y.  S.  888,  7 
W.  C.  L.  J.  238;    Page  v.  New  York  Realty  Co.,  —  Mont.  — ,  1921,  196 
Pac.  871. 

13.  Arizona  Eastern  R.  Co.  v.  Mathews,  20  Ariz.  282,  180  Pac.  159,  4 
W.  C.  L.  J.  3;    Marshall  Field  &  Co.  v.  Indus.  Comm.  of  111.,  285  111.  333, 
120  N.  E.  773,  3  W.  C.  L.  J.  105;    Western  Indemnity  Co.  v.  Pillsbury, 
170  Cal.  686,  151  Pac.  398,  10  N.  C.  C.  A.  1. 

14.  Day  v.  Louisiana  Central  Lumber  Co.,  —  La.  — ,81  So.  328,  4  W. 
C.  L.  J.  89. 

15.  Stewart  v.  Knickerbocker  Ice  Co.,  —  N.  Y.  App.  — ,  123  N.  E.  382; 
Ruddy  v.  Morse  Dry  Dock  &  Repair  Co.,  176  N.  Y.  Supp.  731,  4  W.  C.  L. 
J.  448. 

16.  Sudden  &  Christenson  v.  Indus.  Comm.,  —  Cal.  — ,  188  Pac.  803, 
5  W.  C.  L.  J.  768. 


36 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §5 

and  subsequently  the  United  States  Supreme  Court  reversed 
the  New  York  Court." 

It  is  within  the  power  of  the  Legislature  under  Article  1,  Sec- 
tion 19,  of  the  New  York  Constitution  to  provide  in  the  Work- 
men's Compensation  Law,  Section  11,  that  liability  in  death  cases 
shall  be  exclusive,  except  in  certain  cases.18 

The  Supreme  Court  of  Ohio  has  held  that  the  act  of  March 
20,  1917  (107  Ohio  Laws,  pp.  157,  159),  amending  section 
1465 — 69  Page  &  A.  Gen.  Code,  is  a  valid  and  constitutional 
exercise  of  the  authority  conferred  upon  the  General  Assembly 
of  Ohio  by  section  35  of  Article  2  of  the  Constitution  of  Ohio 
and  applies  to  all  employers  of  labor  mentioned  in  section 
1465 — 60  of  its  General  Code,  holding  the  question  involved  to  be 
in  every  way  analogous  to  the  one  arising  in  the  case  of  Louis- 
ville &  Nashville  R.  Co.  v.  Mottley,  219  U.  S.  467,  31  Sup.  Ct. 
265,  34  L.  R.  A.  (N.  S.)  671,  in  which  it  was  held  by  the  Supreme 
Court  of  the  United  States  that,  "The  power  of  Congress  to  act 
in  regard  to  matters  delegated  to  it  is  not  hampered  by  contracts 
made  in  regard  to  such  matters  by  individuals;  but  contracts 
of  that  nature  are  made  subject  to  the  possibility  that,  even  if 
valid  when  made,  Congress  may  by  exercising  its  power  render 
them  invalid."19 

The  Supreme  Court  of  Washington  in  passing  on  the  con- 
stitutionality of  section  19  of  its  act,  Laws  of  1917  p.  96  said: 

"The  respondent,  in  support  of  his  argument  that  section  19 
is  class  legislation,  insists  that  the  right  to  institute  an  action 
for  personal  injuries  is  given  to  persons  engaged  'in  main- 
tenance and  operation  of  railways  doing  interstate,  foreign  and 
intrastate  commerce,  and  in  maintenance  and  construction  of 
their  equipment,'  and  provides  that  such  railroads  shall,  in 

17.  Knickerbocker  Ice  Co.  v.  Stewart,  —  U.  S.  — ,  40  Sup.  Ct.  R.  438, 
6  W.  C.  L.  J.  119. 

18.  Basso  et  al.  v.  John  Clerk  &  Son,  Inc.,  177  N.  Y.  Supp.  484,  4  W. 
C.  L.  J.  530. 

19.  Thornton  v.  Duffy,  99  Ohio  St.  120,  124  N.  E.  64,  4  W.  C.  L.  J.  548; 
Porter  v.  Hopkins,  91  Ohio  74,  109  N.  E.  629,  9  N.  C.  C.  A.  839;    Utah 
Fuel  Co.  v.  Indus.  Comm.,  —  Utah  — ,  (1920),  194  Pac.  122,  7  W.  C.  L.  J. 
370. 

37 


§5  WORKMEN'S  COMPENSATION  LAWS. 

actions  against  them,  have  available  only  such  defenses  as  are 
available  to  interstate  railroads  or  railroads  engaged  in  inter- 
state business  under  the  Federal  Employer's  Act,  and  that  con- 
stitutes a  discrimination  between  the  rights  possessed  by  em- 
ployees of  railroads  such  as  logging,  interurban,  street,  etc.,  for 
the  reason  that  workmen  engaged  upon  railroads  doing  purely 
an  intrastate  business  are  subject  to  the  same  hazards  as  those 
workmen,  engaged  in  similar  occupations  upon  railroads  within 
the  act.  In  other  words,  that  an  arbitrary  classification  exists, 
while  there  is  no  substantial  distinction  between  the  classes  of 
workmen-  "The  equal  protection  of  the  laws  means  the  pro- 
tection of  equal  laws,  but  this  equality  of  protection  is  not  vio- 
lated by  classification,  provided  equal  protection  is  afforded 
the  members  of  each  class.  The  power  of  the  state  to  classify 
the  objects  of  legislation  is  very  broad.  It  is  a  matter  of  legis- 
lative discretion,  and  such  classification  will  be  upheld  if  it  bears 
a  reasonable  relation  to  a  proper  object  sought  to  be  accomplish- 
ed, even  if  it  may  appear  unwise  or  unjust.  The  courts  will  not  in- 
terfere with  such  classification  unless  the  distinctions  made  are 
clearly  arbitrary.'  Taylor,  Due  Process  of  Law,  p.  725,  Sec. 
458. ' '  It  was  held  that  this  section  did  not  deny  equal  protection 
of  the  laws  in  violation  of  the  Fourteenth  Amendment  to  the 
Federal  Constitution,  in  that  it  discriminated  against  employees 
of  purely  intrastate  carriers.20 

Where  it  was  contended  that  parts  of  the  act  were  unconstitu- 
tional because  not  sufficiently  embraced  in  the  title  as  required 
by  the  state  constitution  which  provides:  "No  bill  shall  em- 
brace more  than  one  subject  and  that  shall  be  expressed  in  the 
title,"  the  court  said:  "As  the  Constitution  has  not  indicated 
the  degree  of  particularity  necessary  to  express  in  its  title  the 
subject  of  an  act,  the  courts  should  not  embarrass  legislation  by 
technical  interpretations  based  upon  mere  form  of  phraseology. 

20.  Archibald  v.  Northern  Pac.  R.  Co.  et  al.,  108  Wash.  97,  183  Pac. 
95,  4  W.  C.  L.  J.  663;  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648,  12 
N.  C.  C.  A.  520;  Sayles  v.  Foley,  38  R.  I.  484,  96  Atl.  340,  12  N.  C.  C.  A. 
949;  Wangler  Boiler  und  Sheet  Metal  Co.  v.  Indus.  Comm.,  —  111.  — ,  122 
N.  E.  366,  3  W.  C.  L.  J.  617. 
38 


ELK<  TIMN.   i;i,ii:<yriON  A  CONSTITUTIONALITY  OP  ACTS.  §5 

The  objections  should  be  grave,  and  the  conflict  between  the 
statute  and  the  Constitution  palpable,  before  the  judiciary 
should  disregard  a  legislative  enactment  upon  the  sole  ground 
that  the  double  subject  was  not  fully  expressed  in  the  title.  Sey- 
mour v.  Tacoma,  6  Wash.  138,  32  Pac.  1077.  No  elaborate  state- 
ment of  the  subject  of  an  act  is  necessary  to  meet  the  spirit  of 
the  Constitution.  A  few  well-chosen  words,  suggestive  of  the 
general  subject  treated,  is  all  that  is  required.  State  ex.  rel. 
settle  El.  Co.  v.  Superior  Ct.,  28  Wash.  317,  68  Pac.  957,  92  Am. 
St.  Rep.  831.  "21 

"The  statute  provides  for  attorney's  fees  where  the  employer 
does  not  institute  proceedings  for  a  review  and  refuses  to  pay 
compensation.  McMurray  v.  Peabody  Coal  Co.,  281  111.  218,  118 
N.  E.  29.  There  is  no  constitutional  objections  to  such  a  statute 
and  the  facts  authorized  the  allowance.  The  purpose  of  the 
statute  is  to  provide  a  speedy  method  for  the  adjustment  of  com- 
pensation and  the  payment  of  the  same,  without  the  delays  of 
litigation  and  the  burden  of  expense  and  attorney's  fees  other- 
wise imposed  upon  claimants."22 

The  question  of  discrimination  undfv  compensation  acts  can 
not  be  raised  by  one  who  does  not  claim  to  be  affected  by  the 
alleged  discrimination.  "The  sole  ground  of  attack  is  that  sec- 
tion 75a  involves  an  unjustifiable  discrimination  against  em- 
ployees who  are  not  residents  of  this  state,  and  thus  violates  the 
provision  of  the  Constitution  of  the  United  States  declaring  that 
the  citizens  of  each  state  shall  be  entitled  to  the  privileges  and 
immunities  of  citizens  in  the  several  states'  (Art.  4,  Sec.  2),  and 
that  prohibiting  any  state  from  denying  'to  any  person  within 

21.  Archibald  v.  Northern  Pac.  R.£o.  et  al.,  108  Wash.  97,  183  Pac.  95, 
4  W.  C.  L.  J.  663;     Fidelity  &  Casualty  Co.  of  N.  Y.  v.  Llewellyn  Iron 
Works,  —  Cal.  App.  — ,  184  Pac.  402,  4  W.  C.  L.  J.  694;    Boyer  v.  Crescent 
Paper  Box  Factory,  143  La.  368,  78  So.  596,  17  N.  C.  C.  A.  473,  2  W.  C.  L. 
J.  71;    Young  v.  Sterling  Leather  Works,  91  N.  J.  L.  289.  102  Atl.  395,  1 
W.  C.  L.  J.  653;    Middleton  v.  Texas  Power  &  Light  Co..  108  Tex.  96,  185 
S.  W.  556,  11  N.  C.  C.  A.  873;    Whittington  v.  La.  Sawmill  Co.  —  La.  — , 
76  So.  754,  A  1  W.  C.  L.  J.  719. 

22.  Friedman  Mfg.  Co.  v.  Industrial  Comm.  of  111.,  284  111.  554,  120  N.  E. 
460,  3  W.  C.  L.  J.  21. 

39 


§5  WORKMEN'S  COMPENSATION  LAWS. 

its  jurisdiction  the  equal  protection  of  the  laws'  (Amendment 
14,  Sec.  1).  Under  settled  principles  of  constitutional  law  the 
petitioners  are  not  in  a  position  to  raise  this  question.  Generally 
speaking,  the  courts  will  not  consider  the  constitutionality  of 
a  statute  attacked  by  one  whose  rights  are  not  affected  by  the 
operations  of  the  statute.  12  C.  J.  760;  Scheerer  v.  Deming,  154 
Cal.  133,  142,  97  Pac.  155.  More  specifically  a  contention  that 
a  statute  denies  equal  rights  and  privileges  by  discriminating 
between  persons  or  classes  of  persons  'may  not  be  raised  by  one 
not  belonging  to  the  class  alleged  to  be  discriminated  against.' 
12  C.  J.  768,  10  Cent.  Dig.  Col.  1284  et  seq ;  Estate  of  Johnson, 
139  Cal.  532,  534,  73  Pac.  424,  96  Am.  St.  Rep.  161.  Thus  the 
validity  of  a  statute  excluding  colored  persons  from  serving  on 
juries  cannot  be  questioned  by  whites.  Commonwealth  v. 
Wright,  79  Ky.  22,  42  Am.  Rep.  203.  Nor  may  a  male  question 
the  validity  of  a  statute  as  discriminating  against  women.  Me- 
Kinney  v.  State,  3  Wyo.  719,  30  Pac.  293,  16  L.  R.  A.  710.  On 
like  grounds,  it  has  been  held  that  a  resident  or  citizen  is  not 
entitled  to  assail  an  act  on  the  ground  that  it  discriminates 
against  those  who  are  not  residents  or  citizens.  Boseman  v.  State, 
7  Ala.  App.  151,  61  So.  604;  Schmidt  v.  Indianapolis,  168  Ind. 
631,  80  N.  E.  632,  14  L.  R.  A.  (N.  S.)  787,  120  Am.  St.  Rep. 
385;  Gallup  v.  Schmidt,  154  Ind.  196,  56  N.  E.  443;  State  v.  Kir- 
by.  34  S.  D.  281,  148  N.  W.  533.  "23 

The  constitution  of  Utah,  article  16.  section  5,  provides:  "The 
right  of  action  to  recover  damages  for  injuries  resulting  in  death 
shall  never  be  abrogated,  and  the  amount  recoverable  shall  not 
be  subject  to  any  statutory  limitation."  It  is  held  that  section 
72  of  the  Industrial  Commission  Act  providing  for  election  be- 
tween compensation  for  deat% under  the  act  or  damages  in  a 
law  action,  and  under  section  73  for  waiver  of  the  right  to  bring 
a  law  action  by  application  for  compensation,  is  not  violative  of 
the  above  provision  of  the  Constitution  as  abrogating  the  right 

23.    Klamath  S.  S.  Co.  v.  Industrial  Accident  Commission,  177  Cal.  767, 

177  Pac.  848,  3  W.  C.  L.  J.  404;    Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571, 

59  L.  Ed.  364,  7  N.  C.  C.  A.  550;  Middleton  v.  Texas  Power  &  Light  Co., 
249  U.  S.  152,  39  Sup.  Ct.  227,  3  W.  C.  L.  J.  553. 

40 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §5 

of  an  adult  to  recover  damages  for  death  under  Compiled  Laws 
1888,  section  3178,  3179;  an  adult  being  capable  of  making  an 
election.24 

In  a  California  case  the  court  said:  "The  Constitutional 
provisions  authorizing  the  Workmen's  Compensation  Law  of 
necessity  uses  the  terms  'employer'  and  'employee'  (article  20 
section  21),  and  it  must  follow  that  in  defining  the  terms  em- 
ployer and  employee  in  any  statute  passed  in  pursuance  thereto 
no  definition  therein  contained  can  enlarge  the  scope  of  the  con- 
stitutional authority."25 

In  so  far  as  section  27  of  the  New  York  Act  as  amended  by 
Laws  1917  c.  705,  section  7,  authorizes  the  state  Industrial  Com- 
mission to  require  mutual  insurers  and  self-insurers,  whose  sol- 
vency was  not  doubted,  to  pay  into  the  state  fund  the  present 
value  of  future  installments  of  compensation  under  awards  for 
d«',ith  claims,  it  is  unconstitutional,  as  discriminating  against 
sneh  insurers  and  in  favor  of  others.2* 

"The  provision  of  the  Constitution  of  the  state  (New  York), 
'The  right  of  action  now  existing  to  recover  damages  for  in- 
juries resulting  in  death,  shall  never  be  abrogated ;  and  the 
amount  recoverable  shall  not  be  subject  to  any  statutory  limita- 
tion' (article  1,  sec.  18),  is  not  relevant  to  the  determination  of 
the  rights  arising,  through  section  29,  to  the  dependents  of  the 
deceased  employee.  The  people  of  the  state,  in  section  19  of 
article  1  of  the  Constitution,  restricted  that  provision  from  dis- 
abling the  Legislature  to  enact  laws  for  the  payment,  in  any 
method  it  selected,  of  compensation  for  death  of  employees  re- 
sulting from  injuries  to  them,  and  to  provide  that  the  right  of 
such  compensation  and  the  remedy  therefor  shall  be  exclusive 
of  all  other  rights  and  remedies  for  death  resulting  from  such 
injuries.  The  power  to  provide  that  a  party  .who  negligently 
kills  an  employee  under  the  act  shall  be  liable  to  the  dependents 

24.  Garfleld  Smelting  Co.  v.  Industrial  Comm.  of  Utah,  —  Utah  — ,  178 
Pac.  57,  3  W.  C.  L.  J.  531. 

25.  Aetna  Life  Ins.  Co.  v.  Indus.  Comm.,  179  Cal.  432,  177  Pac.  273, 
3  W.  C.  L.  J.  407. 

26.  Sperduto  v.  New  York  City  Interborough  Ry.  Co.,  173  N.  Y.  Supp. 
834,  3  W.  C.  L.  J.  503. 

41 


§5  WORKMEN'S  COMPENSATION  LAWS. 

of  the  employee,  as  defined  by  the  act,  and  not  to  his  next  of 
kin,  is  clearly  restored  to  the  Legislature  by  the  later  section. 
See  Shanahan  v.  Monarch  Engineering  Co.,  219  N.  Y.  469,  114 
N.  E,  795.  "27 

The  fact  that  the  Illinois  Act  does  not  require  townships  to 
make  an  election  to  escape  the  provisions  of  the  act  does  not 
make  it  invalid  as  the  Legislature  had  the  power  to  make  town- 
ships liable  for  damages  to  employees  employed  by  its  officers 
whether  caused  by  the  torts  of  its  officers  or  as  mere  incidents 
of  the  employment.28 

The  provision  of  the  Nevada  Act  making  counties  subject 
thereto  is  not  unconstitutional  as  depriving  counties  of  due 
process  of  law,  the  money  required  to  be  paid  by  the  counties 
going  for  a  public  purpose  of  supporting  the  indigent,  which  is 
a  legitimate  charge  on  the  people  of  the  state  and  its  various 
subdivisions.29 

The  Wyoming  Act  does  not  violate  the  state  constitution  pro- 
viding compensation,  ''to  each  person  injured"  in  that  no  com- 
pensation is  allowed  for  the  first  ten  days  of  disability.  "This 
is  a  proper  regulation  and  classification  *  *  *  made  to  protect 
the  employer  from  those  workmen  who  might  prefer  to  remain 
idle  and  draw  compensation  when  really  able  to  pursue  their 
usual  avocations. ' '  8° 

The  California  "Workmen's  Compensation  Act  authorizing 
compensation  to  an  employee  for  injuries  received  outside  of 
the  state  where  the  contract  of  employment  was  made  within 
the  state,  merely  attaches  an  additional  incident  to  a  contract 
made  within  the.  state,  and  is  not  unconstitutional,  as  transcend- 
ing the  powers  of  the  state  to  enact,81 

27.  Travelers'  Ins.  Co.  v.  Padula  Co.,  Inc.,  224  N.  Y.  App.    397,  121 
N.  E.  348,  3  W.  C.  L.  J.  339. 

28.  McLaughlin  v.  Industrial  Board,  281  111.  100,  117  N.  E.  819,  1  W. 
C.  L.  J.  504. 

29.  Nevada  Industrial  Comm.  v.  Washoe  County,  41  Nev.  437,  171  Pac. 
511,  1  W.  C.  L.  J.  1088. 

30.  Zancanelli  v.  Central  Coal  etc.  Co.,  25  Wyo.  511,  173  Pac.  981,  1  W. 
C.  L.  J.  715. 

r  31.     Quong  Ham  Wah.  Co.  v.  Indus.  Ace.  Comm.  of  Cal.,  —  Cal.  — ,  (1920) 
192  Pac.  1021,  7  W.  C.  L.  J.  12. 
42 


I  I.KCTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §5 

The  provisions  of  the  Wisconsin  Act,  allowing  treble  damages 
in  cases  where  a  minor  of  permit  age  is  allowed  to  work  with- 
out a  permit,  is  constitutional.82 

The  Tennessee  Act  is  not  unconstitutional  because  it  provides 
that  an  employee  must  submit  to  an  examination  and  accept 
medical  services  and  denies  to  him  the  right  of  compensation  so 
long  as  he  refuses.83 

The  Montana  Act  is  unconstitutional  in  so  far  as  it  provides 
for  the  Supreme  Court  trying  compensation  cases  "anew"  on 
appeal  from  the  district  court,  since  "the  source  of  all  power 
vested  in  the  Supreme  Court  is  the  Constitution  of  the  State, 
and  in  it  must  be  found  the  measure  of  jurisdiction,"  and  the 
trial  of  a  case  de  novo,  which  was  not  originally  before  it,  is 
not  one  of  the  powers  granted  by  the  constitution. 

"As  district  courts  are  courts  of  original  jurisdiction,  it  was 
within  the  constitutional  power  of  the  Legislature  to  provide 
that  the  trial  in  the  district  court  shall  be  de  novo,  but  the 
Montana  Act  has  provided  that  they  should  have  power  of  re- 
view only.84 

Some  of  the  acts  classify  employments  as  "hazardous,"  "ex- 
tra hazardous"  and  "especially  dangerous"  enumerating  the 
list  of  employments  that  are  covered  by  the  acts.  Such  classifi- 
cation has  been  sustained  by  numerous  decisions  of  the  supreme 
court.85 

Classification  of  employments,  so  as  to  cover  all  industries, 
except  domestic  and  agricultural  (casual  employees  excepted), 
being  elective  as  to  excepted  classes,  is  constitutional  and 

32.  Mueller  &  Son  Co.  v.  Gothard,  —  Wis.  — ,  (1920),  179  N.  W.  576,  6 
W.  C.  L.  J.  730. 

33.  Scott  v.  Nashville  Bridge  Co.,  —  Tenn.  — ,  (1920),  223  S.  W.  844, 
6  W.  C.  L.  J.  580. 

34.  Willis  v.  Pilot  Butte  Mining  Co.,  —  Mont.  — ,  (1920),  190  Pac.  124, 
6  W.  C.  L.  J.  355. 

35.  State  ex  rel.  Davis-Smith  v.  Clausen,  65  Wash.  156,  3  N.  C.  C.  A. 
599,  37  L.  R.  A.  (N.  S.)  466,  117  Pac.  1101   (1911);    Jensen  v.  Southern 
Pac.  Co.,  215  N.  Y.  514,  9  N.  C.  C.  A.  286,  109  N.  B.  600,  (1915).    Affirming 
167  App.  Div.  945,    (1915);    Ives  v.    South  Buffalo    Ry.    Co..     201  N.    Y. 
271,  1  N.  C.  C.  A.  517,  34  L.  R.  A.  (N.  S.)  162.  Ann.  Cas.  1912B,  156  (1911). 

43 


§5  WORKMEN'S  COMPENSATION  LAWS. 

valid.36  The  various  classifications  have  been  held  not  to  violate 
any  constitutional  provision.37 

That  the  acts  of  the  states,  based  upon  state  insurance  and 
other  compensation  acts,  do  not  contravene  the  constitutional 
provision  as  to  "  due  process  of  law ' '  is  sustained  by  the  su- 
preme court  decisions  of  many  states.38 

That  the  provisions  of  a  compulsory  workmen's  compensation 
act  based  upon  state  insurance  are  not  in  contravention  of  the 
State  and  Federal  (seventh  amendment)  Constitutional  provi- 
sions guaranteeing  a  right  of  trial  by  jury  have  been  sustained 
by  the  decisions  of  the  Supreme  Court  of  Washington.39 

Provisions  of  the  act  which  authorize  state  boards  to  levy  in- 
surance premiums,  on  employers  covered  by  the  acts,  of  the  na- 

36.  Western  Indemnity  Co.  v.  Pillsbury,  —  Cal.  — ,  151  Pac.  398,  10 
N.  C.  C.  A.  1. 

37.  Sexton  v.  Newark  Dist.  Tel.  Co.,  84  N.  J.  L.  85,  3  N.  C.  C.  A.  569; 
Matheson  v.  Minn.  St.  Ry.  Co.,  126  Minn.  286,  5  N.  C.  C.  A.  871;    Ives  v. 
South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  34  L.  R.  A.   (N.  S.)   162,  Ann.  Gas. 
1912B,  156,  1  N.  C.  C.  A.  517. 

38.  State  ex  rel.  Davis-Smith  Co.  v.  Clausen,  65  Wash.  156,  3  N.  C.  C.  A. 
599,  37  L.  R.  A.  (N.  S.)  466,  117  Pac.  1101  (1911);    Borgnis  v.  Falk  Co., 
147  Wis.  327,  3  N.  C.  C.  A.  649,  37  L.  R.  A.  (N.  S.)  489    (1911) ;    Jensen  v. 
Southern  Pac.  Co.,  215  N.   Y.  514,  9   N.    C.   C.  A.  286,   (1915).      Aff'g  167 
App.   Div.   945    (1915);      State   ex  rel.   Yaple   v.   Creamer,     85   Ohio   St. 
349,  1  N.  C.  C.  A.  30,  39  L.  R.  A.  (N.  S.)  694    (1912) ;    Sexton  v.  Newark 
Dist.  Tel.  Co.,  84  N.  J.  L.  85,  3  N.  C.  C.  A.  569    (1913) ;    Deibeikis  •».  Link- 
Belt  Co.,  261  111.  454,  5  N.  C.  C.  A.  401,  Ann.  Gas.  1915A,  241    (1914); 
Matheson  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  5  N.  C.  C.  A.  871, 
(1914);    Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  92  Kan.  146, 
5  N.  C.  C.  A.  763,  139  Pac.  1193    (1914),  rehearing  93  Kan.  257,  144  Pac. 
249   (1914);    Memphis  Cotton  Oil  Co.  v.  Tolbert,  —  Tex.  Civ.  App.  — ,  7 
N.  C.  C.  A.  547,  171  S.  W.  309  (1914). 

39.  Dominguez  v.  Pendoia  Cal.  ,   (1920)  188  Pac.  1025,  6  W. 

C.  L.  J.  3.    State  ex,  rel.  Davis-Smith  v.  Clausen,  65  Wash.  156,  3  N.  C.  C. 
A.,  599,  37  L.  R.  A.  (N.  S.)  466,  117  Pac.  1101  (1911) ;  Yaple  v.  Creamer, 
85  Ohio  St.  349,  1  N.  C.  C.  A.  30,  39  L.  R.  A.    (N.  S.)  694  (1912);    New 
York  (Jensen  v.  Southern  Pac.   Co.  215  N.  Y.    514,   9    N.  C.  C.    A.   286, 
109  N.  E.  600   (1915)   Aff'g.    167    App.  Div.   945     (1915)     Cunningham    v. 
Northwestern  Improvement  Co.,  44    Mont.  180,  1  N.  C.    C-    A.    720,  119 
Pac.  554   (1911) ;   Texas  Power  &  Lights  Co.  —  Tex.   Civ.  App.  — ,  9  N. 
C.  C.  A.  847,  178  N.  W.  956  (1915). 

44 


ELECTION,  REJECTION  4  CONSTITUTIONALITY  OP  ACTS.  §5 

ture  of  an  indirect  tax,  to  collect  the  same  and  place  them  in  ;i 
state  insurance  fund,  out  of  which  said  boards  pay  compensa- 
tions to  injured  workmen,  or  to  dependents  do  not  violate  the 
"due  process  of  law"  provisions  of  the  State  and  Federal  Con- 
stitutions,*0 (except  where  the  state  constitutions  contain  pro- 
visions expressly  prohibiting  the  legislature  to  limit  by  legisla- 
tive acts  the  amount  of  damages  an  injured  employee  may  re- 
cover for  a  personal  injury).41 

The  employers  liability  act  is  not  invalid  as  making  the  em- 
ployee without  his  consent,  a  party  in  a  contract  between  the 
employer  and  Insurance  carrier,  as  the  employee  is  not  made  a 
party  to  such  contract,  but  is  merely  given  a  right  of  action 
thereon  as  additional  security,  and  the  nullity  of  such  provision 
would  not  entail  the  nullity  of  the  entire  act,  under  the  express 
provision  of  section  41  of  the  act.42  Nor  is  it  unconstitutional 
because  taking  away  the  employee's  right  of  action  under  the 
general  law  of  torts.48 

The  provision  of  the  act  relative  to  fees  to  attorneys  does  not 
deny  the  right  of  an  employee  to  be  represented  by  counsel, 
since  the  state  has  made  provision  that  the  states  attorney  will 
when  requested  act  for  the  injured  party.  Nor  is  the  act  un- 
constitutional in  providing  that  children  over  the  age  of  16 
shall  not  be  considered  dependents  unless  incapacitated.  The 
amendment  of  1917  providing  that  nonresident  alien  dependents 
shall  receive  only  33  per  cent  of  the  amount  allowed  to  resi- 
dents of  the  state  does  not  invalidate  the  act.44 

40.  Jensen  v.  Southern  Pac.  Co.,  216  N.  Y.  514,  9  N.  C.  C.  A.  286,  109 
N.  E.  600. 

41.  Kentucky  State   Journal  Co.   v.  Workmen's  Compensation    Board, 
161  Ky.  562,  7  N.  C.  C.  A.  568,  170  S.  W.  1166. 

42.  Boyer  v.   Crescent  Paper   Box  Factory,  -         -   La.   -  — ,  78  So. 
596,  2  W.  C.  L.  J.  71. 

43.  N.  Y.  C.    R.  C.  v.  Sarah  White,    243   U.  S.  188,    37   Sup,   Ct.    247, 
61  L.   Ed.  667,  L.   R.  A.  1917D   1,  Ann.  Cas.   1917D,   629,  13  N.   C.  C.    A, 

943 ;    Boyer  v.  Crescent  Paper  Box  Factory  -     -  La. ,  78  So.  596,  2 

W.  C.  L.  J.  71;     Johnston  v.  Kennecott  Copper  Corp.    (C.  C.  A.)    248 

Fed.  407,  2  W.  C.  L.  J.  15;    Williams  v.  Blodgett  Const.  Co. La. , 

(1920)   84  So.  115,  6  W.  C.  L.  J.  53. 

44.  Zancanelli  v.  Central  Coke  ft  Coal  Co., Wy. ,  173  Pac.  981, 

2  W.  C.   L.  J.  715. 

45 


§5  WORKMEN'S  COMPENSATION  LAWS. 

The  legislature  has  power  to  limit  reviews  and  make  them 
conclusive  except  as  to  reviews  by  the  proper  courts  named  in 
the  Statute.45 

The  Iowa  Act  does  not  interfere  with  existing  contracts,  there- 
fore it  is  not  unconstitutional  as  impairing  the  obligation  of 
contracts.  Whenever  any  liberty  is  left  on  which  to  contract, 
a  new  contract  or  a  change  in  contract  made  by  contract  can- 
not be  objected  to  as  an  invalid  impairment.  The  Iowa  Act  being 
elective,  cannot  work  an  impairment  of  the  obligation  of  con- 
tracts and  is  a  valid  exercise  of  the  police  power  of  the  state.48 

While  the  Texas  Act  denies  to  non  assenting  employers  the 
right  to  interpose  the  defenses  of  fellow  servant,  assumed  risk 
and  contributory  negligence,  in  negligence  cases  that  does  not 
render  the  act  unconstitutional  as  to  such  employers,  the  right 
withdrawn  being  neither  a  vested  right  nor  a  property  right; 
the  defenses  denied  being  but  doctrines  or  rules  of  the  common 
law  and  not  defenses  which  affect  the  employers'  substantial 
equities,  and  no  absolute  liability  is  imposed  since  the  substantial 
defense  of  absence  of  negligence  is  expressly  preserved  by  the 
act.47 

The  fact  that  the  provision,  that  alien  dependents  receive  only 
one-half  the  amount  payable  to  residents,  is  invalid  does  not  in- 
validate the  remainder  of  the  act  since  it  may  be  eliminated  and 
still  retain  the  remainder  of  the  act.  Establishing  a  board  does 
not  violate  the  constitutional  provision  that  no  courts  other  than 
provided  for  by  the  constitution  shall  be  established  since  the 
board  is  not  a  court  and  ample  provision  is  made  for  review 
by  the  courts.  The  fact  that  the  act  makes  a  child  sui  juris  does 
render  it  invalid.48 

45.  Thaxter  v.  Finn,  -    -  Gal. ,  173  Pac.  163,  2  W.  C.  L.  J.  431. 

46.  Hunter  v.  Colfax  Coal  Co.,  -   -  Iowa  -     — ,  154  N.  W.  1037,  11  N. 

C.  C.  A.  886;     Middleton  v.  Texas  Power  &  Light.  Co.,  -    -  Tex. , 

185  S.  W.  556,  11  N.  C.  C.  A.  873;    Hawkins  v.  Blakley,  243  U.  S.  210,  61 

L.  Ed. ,  37  Sup.  Ct.  R.  255,  13  N.  C.  C.  A.  959;     Sayles  v,  Foley 

R.  I.  -      — ,  96  Atl.   340,   12  N.   C.  C.  A.   949. 

47.  Middleton  v.  Texas  Power  &  Light  Co. Tex. ,  185  S.  W. 

556,  11  N.  C.  C.  A.  873;    Sayles  v.  Foley, R.  I. ,  96  Atl.  340,  12 

N.  C.  C.  A.  949. 

48.  Greene  v.  Caldwell, Ky. ,  186  S.  W.  648,  12  N.  C.  C.  A.  520. 

46 


I  LKCTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §5 

A  provision  in  the  employers'  liability  act  for  the  addition 
of  50  per  centum  for  waiting  time  for  delinquent  payments  after 
30  days  notice  has  been  given  is  reasonable,  and  is  not  uncon- 
stitutional as  depriving  the  party  liable,  of  property  without  due 
process  of  law.49 

"In  the  exercise  of  the  power  granted  by  section  35,  article 
II,  of  the  Constitution,  of  Ohio  to  pass  a  compulsory  compen- 
sation law,  the  general  assembly  is  authorized  to  include  all 
such  reasonable  provisions  as  are  necessary  to  make  the  law 
effective  and  to  accomplish  the  purpose  expressed  in  the  con- 
stitutional provision  referred  to. 

"The  line  which  separates  power  to  make  laws  from  power  to 
interpret  and  apply  laws  is  not  exactly  defined.  The  legislature 
cannot  confer  upon  tribunals,  other  than  courts,  powers  which 
are  strictly  and  conclusively  judicial.  But  in  providing  for  the 
enforcement  of  its  enactments,  it  -may  clothe  administrative 
officers  with  power  to  ascertain  whether  certain  specified  facts 
exist,  and  thereupon  to  act  in  a  prescribed  manner,  without 
delegating  to  such  officers  legislative  or  judicial  power  within 
the  meaning  of  the  Constitution.50 

The  provisions  of  the  Ohio  Act  allowing  employers  of  sufficient 
financial  ability  to  cai-ry  their  own  insurance  does  not  violate 
the  "equality  before  the  law"  provisions  of  the  Constitution.51 

The  Texas  Act  was  held  unconstitutional  in  so  far  as  it  was 
compulsory  as  to  employees  while  elective  to  employers." 

The  court  in  construing  and  holding  constitutional  the  pro- 
vision of  the  California  Act  providing  for  an  increase  of  fifty 
per  cent,  where  an  injury  to  an  employee  was  due  to  the  willful 
misconduct  of  the  employer,  said,  "The  Constitution,  as  it  stood 
at  the  time  the  legislation  in  force  on  June  7,  1919,  was  enacted, 
empowered  the  Legslature  to  create  a  liability  on  the  part  of 

49.  U.  S.  Fidelity  &   Guar.   Co.  v.   Wickline  -    -  Neb.  .   170  N. 

W.  193,  18  N.  C.  C.  A.  664. 

50.  Fasslg  v.  State, Ohio , N.  E. ,  13  N.  C.  C.  A.  845. 

51.  State  ex  rel.  Turner  v.  U.  S.  Fidelity  &  Guaranty  Co.  of  Baltimore 
Md.,  -    -  Ohio  St. ,  117  N.  E.  232,  15  N.  C.  C.  A.  765. 

52.  Middleton  v.  Texas  Light  &  Power  Co., Tex.  Civ.  App. 178, 

S.  W.  956,  9  N.  C.  C.  A.  847. 

47 


§5  WORKMEN'S  COMPENSATION  LAWS. 

• 

employers  'to  compensate  their  employees'  for  any  injury 
received  in  the  course  of  their  employment,  'irrespective  of  the 
fault  of  either  party.'  Article  20,  Par.  21.  This  language  does 
not  authorize  the  creation  of  a  liability  for  anything  more  than 
compensation.  If  the  50  per  cent  to  be  added  in  cases  where 
the  injury  is  caused  by  the  willful  misconduct  of  the  employer 
is  given  as  a  penalty  on  the  employer  for  such  misconduct,  and 
not  as  compensation  to  the  employee  for  his  injury,  the  pro- 
vision is  not  within  the  power  given  to  the  Legislature  by  said 
section,  and  if  if  hag  no  other  sanction,  it  is  beyond  the  legis- 
lative power  and  void. 

"All  presumptions  are  to  be  indulged  in  favor  of  the  validity 
of  an  act  of  the  Legislature.  It  is  therefore  to  be  assumed  the 
Legislature  found  that  the  actual  injury  by  loss  of  earnings  and 
other  elements  of  damage,  not  including  expenses  for  costs  of 
treatment  and  the  like,  would  be  at  least  50  per  cent,  more  than 
the  fixed  schedule  would  come  to,  and  that  it  was  deemed  just, 
if  the  injury  was  caused  by  willful  misconduct  of  the  employer, 
he  should  be  made  to  pay  a  greater  proportion  of  the  burden, 
and  the  allowance  in  such  a  case  should  be  increased  by  adding 
50  per  cent  thereto.  Thus  considered,  the  additional  allowance 
is  really  for  additional  compensation  in  the  strict  sense,  and 
not  for  exemplary  damages.  This  being  the  case,  the  power  to 
enforce  it  was  properly  given  to  the  commission  under  the  pro- 
vision of  section  21,  article  20,  of  the  Constitution."53 

A  provision  of  the  compensation  act  allowing  living  expense 
to  the  wife  and  minor  children  of  an  injured  employee  who  has 
deserted  or  is  neglecting  his  family,  is  not  unconstitutional  in 
permitting  the  wife  to  proceed  in  behalf  of  the  community  to 
secure  the  property  belonging  to  the  community  when  the  hus- 
band has  failed  in  his  duties  to  his  family.54 

A  provision  of  the  Louisiana  Act  authorizing  the  district  court 
to  require  an  employer,  against  whom  an  award  has  been  made, 

53.  E.  Clemens  Horst  Co.  v.  Ind.  Ace.  Comm.,  Cal.  ,  (1920), 

193  Pac.  105.  7  W.  C.  L.  J.  3. 

54.  Northwestern  Redwood  Co.  v.  Indus.  Comm., Cal. ,  (1920). 

194  Pac.  31,   7  W.  C.  L.  J.   262. 

48 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OF  ACTS.  §6 

to  furnish  a  bond  when  it  determines  that  the  employer's  sol- 
vency is  questionable,  is  violative  of  Art.  96  of  the  Louisiana 
Constitution  which  provides  that  no  functions  except  such  as  are 
judicial  shall  ever  be  attached  to  the  district  court  or  the  justices 
thereof;  the  determination  of  the  solvency  of  an  employer  under 
the  compensation  act  cannot  be  said  to  be  judicial." 

The  provision  of  the  Maine  Act,  providing  for  the  exclusive 
determination  of  issues  of  fact,  in  the  absence  of  fraud,  by  the 
chairman  of  the  Industrial  Accident  Commission,  is  not  violative 
of  the  constitution.5' 

§  6.  Presumption  of  and  Notice  of  Election  and  Rejection. — 
Under  the  acts  of  a  number  of  states,57  all  employees  and  private 
employers,  subject  to  certain  exceptions  provided  in  the  acts,  are 
presumed  to  have  elected  to  come  under  the  act  unless  they  give 
written  notice  to  the  Workmen's  Compensation  Board  or  other 
specified  officer,58  and  under  most  acts,  to  each  other,  of  their 
desire  to  reject  the  act.  It  has  been  held  that  receivers  under 
their  general  powers  may  accept  or  reject  an  elective  act.59 
Usually  the  notice  of  rejection  must  be  given  within  a  specified 
time  prior  to  the  happening  of  the  accident  resulting  in  dis- 

55.  In  re  Southern  Cotton  Oil  Co.,  -    -  La.  ,  (1920),  86  So.  656, 

7  W.  C.  L.  J.  304. 

56.  Mailman    v.    Record    Foundry    &    Mach.    Co.,   Me.    -  — ,    106 

Atl.   606,  4  W.   C.  L.  J.  205. 

Note — For  constitutionality  of  provisions  pertaining  to  aliens  see  Section 
375. 

57.  Ala.,  Conn.,  Ind.,  Kan.,  la.,  La.,  Minn.,  Mo.,  Nebr.,  Nev.,  N.  J.,  Penn., 
Va.,  Tenn.,  Wis. 

58.  Beveridge  v.  Illinois  Fuel  Co.,  283  111.  31,  119  N.  E.  46,  17  N.  C.  C.  A. 
463;    Currau  v.   Wells   Bros.   Co.,  205  111.  App.   307,  17   N.  C.  C.  A.  470; 

Rice  v.  Garrett, Tex.  Civ.  App. ,  194  S.  W.  667,  17  N.  C.  A.  466; 

Garrett  v.  Anglo-American  Provision  Co..  205  111.  App.  411,  17  N.  C.  C.  A. 

466;    Texas  Employers  Ins.  Ass'n  v.  Downing,  -    -  Tex.  Civ.  App. , 

218  S.  W.  112.  5  W.  C.  L.  J.  582. 

59.  Devine  v.  Delano,  272  111.  166,  17  N.  C.  C.  A.  464. 

49 

W.  C.— 4 


§6  WORKMEN'S  COMPENSATION  LAWS. 

ability  to  the  employee.60     With  one  exception61    presumption  of 
election  has  been  considered  by  the  courts  to  be  proper.62 

In  1917  the  elective  feature  of  the  Illinois  act  was  abrogated 
as  to  the  hazardous  occupations  set  out  in  Section  3,  of  the  act- 
Prior  to  that  time  employers  included  within  that  section  were 
conclusively  presumed  to  have  elected  to  be  bound  by  its  terms, 
unless  a  contrary  intention  had  been  manifested  as  provided  in 
the  act.63  No  presumption  of  election  to  come  under  that  act 
exists  as  to  occupations  not  included  in  Section  3,  of  the  act. 
"As  the  defendant  in  error  was  not  engaged  in  any  occupation 
referred  to  in  Section  3,  and  there  was  no  election  on  his  part 
or  on  the  part  of  the  employer  to  come  under  the  Compensation 
Act,  it  follows  that  they  were  not  operating  under  said  act,  and 
that  the  Industrial  Commission  was  without  jurisdiction  to 
award  the  compensation  in  this  case,  and  the  circuit  court  erred 
in  affirming  the  award  and  quashing  the  writ  of  certiorari.  "64 

60.  Harris  v.  Hobart  Iron  Co.,  127  Minn.  399,  149  N.  W.  662;  Reynolds 
v.  Chicago  City  Ry.   Co.,  287  111.  124,    122  N.    E.    371;     Great   Northern 
Ry.  Co.  v.   King,  —  Wis.    — ,  161    N.     W.    371,     B.  1  W.    C.  L.  J.  1673; 
Krisman    v.  Johnson    City  &    B.  M.    Coal    &     Min.    Co.,     190  111.    App. 
612;  Gregutis    v.   Waclark  Wire  Works,    86  N.   J.   L.  610,    92    Atl.  354; 
Garrell  v.  Battelle,  93   Kan.  370,  144  Pac.   244;    Great   Northern  Ry.  Co. 

v.  King,  -    -  Wis. ,  161  N.  W.  371,  17  N.  C.  C.  A.  465;    Wiesdippe 

v.  Zwiefel, Wis. ,  160  N.  W.  1038;    Colwell  v.  Bedford  Stone  & 

Construction  Co.,  -   -  Ind.  App. ',  (1920),  126  N.  E.  439,  5  W.  C.  L.  J. 

823;    Johnson  v.  Choate,  -    -  111. ,  119  N.  E.  972,  2  W.  C.  L.  J.  458; 

Friebel  v.  Chicago  City  Ry.  Co., 111. ,  117  N.  E.  467,  1  W.  C.  L.  J. 

18;    Hagenback  v.  Leppert,  -    -  Ind.  App. ,  117  N.  E.  531,  1  W.  C. 

L.   J.  64. 

61.  In  Kentucky  this  provision  was  deemed  objectionable,  State  Jour- 
nal v.    Workmen's    Compensation   Board,    162    Ky.    387,  172    S.    W.   674, 
L.R.  A.,    1916A,  402,  Aff'g,  161  Ky.  562,  170  S.  W.  1166,  L.  R.  A.  1916A, 
389,  Ann.  Cas.  1916B,  1273. 

62.  Johnson  v.  Nelson,  128  Minn.  158,  150  N.  W.  620;    Dietz  v.   Big 
Muddy  Coal  &  Iron  Co.,  263  111.  480,  105  N.  E.  289;  Shade  v.  Grove  Lime 
&  Portland   Cement  Co.,    (1914)  92  Kan.  146,  139  Pac.   1193;     Young  v. 

.Duncan,  218  Mass.  346,  106  N.    E.  1;   Texas    Employer's    Ins.  Ass'n.  v. 
Downing,  —  Tex.   Civ.  App.  — ,   218  S.  W.  112,  5   W.  C.  L.  J.  582. 

63.  Bishop  v.  Bowman  Dairy  Co.,  198  111.  App.  312   (1916);    Palmieri 
v.  Illinois  Third  Vein  Coal  Co.,  208  111.  App.  405  (1917);  Friebel  v.  Chi- 
cago City  Ry.  Co.  et  al.,  280  111.  76,  117  N.  E.  467,  16  N.  C.  C.  A.  390; 
Witchita  Falls  Motor  Co.  v.  Meade,  203  S.  W.  71,  2  W.  C.  L.  J.  135. 

64.  Seggebruch  v.  Industrial  Comm.  et  al.,  288  111.  163,  123  N.  E.  276, 
4  W.  C.  L.  J.  156;    Vaughan's  Seed  Store  v.  Simonini,  275  111.  477,  114  N. 
E.  163,  14  N.  C.  C.  A.  1075. 

50 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §6 

On  the  question  of  whether  the  employer  has  brought  himself 
under  the  Illinois  Act  the  Supreme  Court  of  that  state  said, 
"whether  or  not  an  employer  elects  to  operate  under  the  act  is  a 
question  of  fact.  Paragraph  (a)  requires  that  notice  of  such 
election  shall  be  filed  with  the  commission  but  does  not  pre- 
scribe a  particular  form  of  notice  to  be  used,  and  where  the  <M 
ployer,  as  in  this  case,  upon  the  receipt  of  a  demand  that  he 
comply  with  section  26,  satisfies  the  commission  of  such  com- 
pliance and  receives  its  certificate  to  that  effect,  which  action 
on  his  part  he  explains  as  having  been  the  result  of  his  deter- 
mination to  operate  under  the  act,  he  cannot  be  heard  to  say  that 
he  had  not  elected  to  come  under  the  act  merely  because  he  had 
not  filed  formal  notice  of  such  election  with  the  commission."65 

Under  the  Illinois  Act  the  presumption  of  acceptance  extends 
to  a  carrier  by  land,66  and  where  the  employer  made  no  election 
to  accept  or  reject  the  act  it  was  held  that  there  was  a  legal 
presumption  that  he  was  under  the  act  and  the  employee  could 
not  reject  the  act  while  the  employer  was  subject  thereto.67  Al- 
though an  employer  elects  to  pay  compensation  under  the 
Illinois  Act  an  employee  will  not  be  bound  by  such  election 
where  the  employer  does  not  furnish  a  statement  or  post  notices 
of  his  election  as  provided  by  the  act.88  But  where  the  employ- 
er wrote  a  letter  indicating  a  rejection  of  the  act  and  inquired 
what  further  must  be  done  to  reject  and  posted  typewritten  and 
signed  notices  in  its  place  of  business  as  required  by  the  act  these 
acts,  in  the  absence  of  rules  to  the  contrary  were  held  to  con- 
stitute a  rejection  of  the  act.69  Under  the  Illinois  act  notice  of  re- 

65.  Paul  v.  Industrial  Comm.,  288  111.  532,  123  N.  E.  541,  4  W.  C.  L.  J. 
371;    Ellsworth  v.  Indus.  Comm.,  290  111.  514.  • 

66.  Cously  v.  Chicago  &  A.  R.  Co.,  207  111.  App.  565,  17  N.  C.  C.  A.  465; 
State  v.  District  Court  of  St.  Louis  Co.,  —  Minn.  — ,  (1920),  176  N.  W.  749. 
5  W.  C.  L.  J.  711. 

67.  Means  v.  Terminal  Railroad  Assn.  of  St.  Louis,  202  111.  App.  591, 
17  N.  C.  C.  A.  470. 

68.  Curran  v.  Wells  Bros.  Co.,  215  111.  App.  37;    Reynolds  v.  C.  C.  Ry. 
Co.,  287  111.  124;    Garrett  v.  Anglo-American  Provision  Co.,  205  111.  App. 
411. 

69.  A.  T.  WHlet  Co.  v.  Indus.  Comm.,  287  111.  487,  122  N.  E.  864,  4  W. 
C.  L.  J.  44. 

51 


§6  WORKMEN'S  COMPENSATION  LAWS. 

jection,  after  having  once  elected,  must  be  filed  sixty  days  prior 
to  the  first  of  January,  otherwise  the  employer  will  continue  to  be 
bound  by  the  act  for  another  year. ' ' 70 

It  was  held  in  a  Kansas  Case  that,  where  the  employer  re- 
jected the  act,  which  was  later  very  materially  amended,  but 
still  contained  the  same  presumption  of  acceptance,  the  act  then 
applied  to  the  employer  in  the  absence  of  a  second  notice  of 
rejection.71 

In  another  Kansas  case  the  court  said:  "For  the  reason  set 
out  in  the  opinion  in  Railway  Co.  v.  Fuller,  186  Pac.  127,  which 
was  argued  and  submitted  together  with  this  case,  it  is  held 
that  under  the  law  as  it  now  exists,  all  employers  of  five  or  more 
workmen,  engaged  in  industries  characterized  by  the  statute  as 
especially  dangerous,  are  subject  to  the  compensation  system, 
except  where  notice  to  the  contrary  has  been  given  subsequent 
to  the  adoption  of  the  act  of  1917  (chapter  226)  in  relation  there- 
to, irrespective  of  what  may  have  been  done  before  that  time."72 

Where  the  act  provides  that  the  employee  must  also  notify  his 
employer  of  his  rejection  of  the  act,  or  vice  versa,  such  provision 
must  be  complied  with  strictly,  otherwise  the  presumption  in 
favor  of  election  will  prevail.73  Or  where  the  act  provides  that 
the  employer  must  give  notice  to  his  employees  of  his  election 
to  come  under  the  act,  and  he  fails  to  give  the  statutory  notice 
to  the  employees,  his  election  is  not  binding  upon  employees  who 
had  no  knowledge  of  his  election  to  operate  under  the  act.74 

70.  Victor  Chemical  Works  v.  Industrial  Board,  274  111.  11. 

71.  Chicago  R.  I.  &  P.  Ry.  Co.  v.  Fuller,  105  Kan.  608,  186  Pac.  127,  5 
W.  C.  L.  J.  386. 

72.  Wegele  v.  Ismert-Hincke  Milling  Co.,  105  Kan.  615,  186  Pac.  130, 
5  W.  C.  L.  J.  391. 

73.  Quart  v.  Simmons,  231  Mass.  313,  121  N.  E.  10,  3  W.  C.  L.  J.  136; 
Beveridge  v.  Illinois  Fuel  Co.,  283  111.  31,  119  N.  E.  46,  17  N.  G.  C.  A. 
463;    Bernard  v.  Michigan  United  Traction  Co.,  188  Mich.  504,  154  N.  W. 
565;    Piatt  v.  Swift  &  Co.,  188  Mo.  App.  584,  176  S.  W.  454;    White  v.  Ful- 
ler Co.,  276  Mass.  1,  114  N.  E.  829;    Barnes  v.  Illinois  Fuel  Co.,  283  111. 
173;    Davis  v.  St.  Paul  Coal  Co.,  286  111.  6.4;    Wiesedeppe  v.  Zweifel,  — 
Wis.  — ,  160  N.  W.  1038,  B  1  W.  C.  L.  J.  1701. 

74.  Batson  Milholme  Co.  v.  Faulk,  —  Tex.  Civ.  App.  — ,  209  S.  W.  837, 
3  W.  C.  L.  J.  805;    Van  Vlissingen  v.  Lenz,  171  111.  162;    Kampmann  v. 
Cross.  —  Tex.  Civ.  App.  — ,  194  S.  W.  437,  B  1  W.  C.  L.  J.  1561. 

52 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OF  ACTS.  §7 

In  a  Texas  case  in  which  an  employer  was  sued  for  damages 
by  an  employee  the  court  said:  "Since  no  proof  was  offered 
upon  the  hearing  of  the  pleas  to  support  the  allegation  that  the 
written  or  printed  notice  had  been  given  to  Poe  by  the  Conti- 
nental Oil  and  Cotton  Company,  as  required  by  article  5246x  and 
5246xx  Vernon's  Sayles'  R.  S.,  it  must  be  presumed  that  no  such 
notice  was  given.  *  *  *  Since  such  notice  had  not  been  given,  Poe 
had  the  right  to  institute  a  suit  in  the  courts  against  Guitar  to 
recover  damages  for  personal  injuries.  See  also  Farmers'  etc., 
v.  Shelton,  202  S.  W.  194,  Batson-Milhome  Co.  v.  Faulk,  209  S. 
W.  837.  But  while  this  was  his  privilege  we  do  not  think  that 
Poe  was  limited  thereto ;  but  if  he  saw  fit  to  do  so  he  could  waive 
the  provisions  with  reference  to  notice,  claim  the  benefit  of  the 
act,  and  enforce  against  Guitar  and  his  insurer,  before  the  in- 
dustrial Accidental  Board  the  liability  for  compensation  imposed 
by  the  Employer's  Liability  Act.  The  right  to  waive  notice 
was  recognized  in  Rice  v.  Garrett,  194  S.  W.  667.  "75 

§  7.  Requirements  as  to  Notice  of  Election. — In  discussing 
the  necessity  of  strict  compliance  with  the  statute  in  the  matter 
of  notice  of  election  and  rejection  of  the  act  the  Texas  Civil 
Appeals  court  says:  "As  notice,  then,  determines  the  question  of 
the  election  of  the  employee,  and  so  vitally  affects  the  liability 
of  the  parties  entering  into  the  contract  of  employment,  in  the 
event  of  injury  to  the  employee,  and  the  statute  itself  has  pro- 
vided that  the  notice  which  thus  forms  the  basis  of  a  liability 
different  from  what  it  would  otherwise  be,  shall  be  'in  writing, 
or  print,'  it  seems  to  us  that  the  employer,  in  order  to  establish 
the  election  of  the  employee  and  that  the  contract  of  employ- 
ment, was  thus  made  subject  to  the  terms  of  the  compensation 
act,  should  show  that  the  notice  in  writing  or  print  was  given 
or  that  the  employee  waived  such  notice."76 

75.  Poe  v.  Continental  Oil  &  Cotton  Co.,  —  Tex.  Civ.  App.  — ,  211  S. 
W.  488,  4  W.  C.  L.  J.  138. 

76.  Rice  v.  Garrett,  —  Tex.  Civ.  App.  — ,  194  S.  W.  667,  17  N.  C.  C.  A. 
466;    Great  Northern  Ry.  v.  King.  165  Wis.  159,  161  N.  E.  371,  17  N.  C.  C. 
A.  465;  Danies  v.  Chas.  Boldt  Co.,  78  W.  Va,  124,  88  S.  E.  613,  17  N.  C.  C. 

53 


§7  WORKMEN'S  COMPENSATION  LAWS. 

"When  courts  permit  the  question  of  notice  to  become  one  of 
fact,  they  have  given  the  employers  the  benefit  of  as  generous  a 
construction  of  the  statute  as  it  will  bear,  for  laws  depriving 
citizens  of  rights  possessed  by  them  should  be  strictly  construed, 
and  a  strict  construction  of  the  statute  might  require  the  placing 
of  a  written  or  printed  notice  in  the  hands  of  each  employee  in 
order  to  deprive  him  of  his  common-law  right  to  go  into  a  court 
and  prove  his  damages.77 

"It  might  be  well  to  say  that  it  is  the  opinion  of  this  court  that 
the  posting  of  notices  alone,  without  any  fact  or  circumstance 
going  to  show  that  the  employee  had  read  or  become  acquainted 
personally  with  the  notice,  would  not  be  sufficient,  but  that  the 
act  is  not  only  mandatory,  and  requires  the  actual  giving  of 
written  or  printed  notice  by  the  employer  to  the  employee,  and 
that  these  facts  should  not  be  left  to  presumption,  but  should 
rest  upon  actual  proof.  The  fact,  as  contended  by  appellant, 
that  Section  19,  pt.  3,  of  the  Act  of  1913,  is  not  followed  by 
words  of  prohibition,  could  not  and  would  not,  in  our  opinipn, 
render  the  said  clause  any  the  less  mandatory  and  compelling; 
and  the  fact,  it  if  be  a  fact,  that  there  were  posted  upon  the 
premises  on  and  about  which  appellee  worked  notices  that  it  had 
provided  for  payment  of  compensation  to  its  injured  employees 
under  the  Employers'  Liability  Act,  c.  179,  General  Laws  of  the 
Thirty-Third  Legislature  and  amendments  thereto,  by  insuring 
with  the  Texas  Employers'  Insurance  Association  of  Dallas, 
Tex.,  woud  be  only  an  evidence,  not  conclusive  but  admissible 
only,  to  show  that  the  employee  had  actual  notice  as  required 
by  the  statute."78 

In  an  action  at  law  against  an  employer,  where  it  appears  that 
the  employee  prosecuted  a  claim  under  the  act  to  final  adjudica- 
tion, the  question  of  notice  to  the  employee  by  the  employer  of 

A  472;  Reynolds  v.  C.  C.  Ry.  Co.,  287  111.  124;  Barnes  v.  Illinois  Fuel 
Co.,  283  111.  173,  17  N.  C.  C.  A.  478;  Davis  v.  St.  Paul  Coal  Co.,  286  III. 
64;  Consol.  Kan.  City  Smelting  &  Refining  Co.  v.  Dean,  —  Tex.  Civ.  App. 
— ,  189  S.  W.  747,  B  1  W.  C.  L.  J.  1551. 

77.  Kampmann  v.  Cross,  —  Tex.  Civ.  App.  — ,  194  S.  W.  437. 

78.  Farmers'  Petroleum  Co.  v.  Shelton,  —  Tex.  Civ.  App.  — ,  202   S. 
W.  194  (1918),  17  N.  C.  C.  A.  477.. 

54 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OF  ACTS.  §7 

ilir  latter '»  compliance  with  the  act  is  immaterial.  The  court 
said:  "This  we  think  sufficiently  shows  he  accepted  as  such 
employee,  provided  the  board  find  that  he  fell  within  the  class 
of  employees  defined  within  the  act."19 

In  an  Iowa  case  the  employer  filed  a  written  notice  of  re- 
jection of  the  act  with  the  industrial  commission  and  posted 
notices  about  his  plant  to  that  effect.  Later  he  accepted  the 
provisions  of  the  act  and  tore  down  the  notices  about  the  plant. 
The  court  held  that  this  was  not  a  sufficient  acceptance  of  the 
act.  The  Iowa  Act  provides  that  waiver  of  rejection  of  the  act 
shall  be  accomplished  in  the  same  manner  as  when  the  act  is 
accepted.  This  requires  the  filing  of  notice  of  acceptance  with 
the  industrial  commissioner  and  the  posting  of  notices  "in  some 
conspicuous  place  at  the  place  where  the  business  is  carried  on." 
Tearing  down  the  notices  was  not  a  substantial  compliance  with 
the  law.  Had  plaintiff  had  actual  notice  it  would  have  been 
binding  upon  him,  but  it  was  not  shown  that  he  had  such  notice, 
and  failure  to  post  notice  was  not  excused  because  of  the  fact 
that  the  injured  workman  was  a  foreigner  who  could  not  read 
the  notice  when  printed  in  the  English  language.80 

Under  the  Louisiana  Act  there  is  a  presumption  that  the  Act 
applies  even  though  the  accident  occurs  within  30  days  after 
the  date  of  the  contract  of  employment  and  notice  of  rejection 
by  an  employee  must  be  given  30  days  prior  to  an  accident.  "It 
must  be  observed  therefore  that  an  agreement  of  election  that 
the  statute  shall  apply  to  a  contract  of  employment  need  not  be 
expressed  but  may  be  implied,  and  that,  as  far  as  subsection  1 
goes,  the  agreement,  whether  expressed  or  implied,  need  not  be 
in  existence  30  days,  but  must  be  merely  'prior  to  the  injury,' 
to  have  the  effect  of  making  the  statute  applicable  to  the 
case."81 

79.  Texas  Refining  Co.  v.  Alexander,  —  Tex.  Civ.  App.  — ,  202  8.  W. 
131 ;    Pavia  v.  Petroleum  Iron  Works  of  Pa.,  — ,  N.  Y.  App.  — ,  164  N.  Y.  S. 
790,  B.  1  W.  C.  L.  J.  1386. 

80.  Paucher  v.  Enterprise  Coal   Mining  Co.,  182  Iowa  1084.  164  N.  W. 
1035;    17  N.  C.  C.  A.  469;    Beveridge  v.  111.  Fuel  Co.,  283,  111.  231.  119 
N.  E.  46,  16  N.  C.  C.  A.  463;    Rev'g,  206  111.  App.  145. 

81.  Philps  v.  Guy  Drilling  Co.,  143  La.  951,  79  So.  549,  17  N.  C.  C.  A. 

55 


§7  WORKMEN'S  COMPENSATION  LAWS. 

An  employer  cannot  escape  liability  upon  failure  to  post  the 
proper  notices  by  showing  that  he  had  requested  said  notices  to 
be  furnished  by  the  state  authorities  but  none  were  furnished, 
for  the  statute  makes  no  provision  for  the  furnishing  of  notices 
by  the  state.82 

Under  the  New  Jersey  Act  the  statute  provides  that  an  em- 
ployer of  minors  must,  upon  rejection  of  the  act,  give  actual 
notice  to  the  parents  or  the  guardian  of  the  minor,  otherwise 
the  act  will  be  presumed  to  apply.83 

Under  the  Michigan  Act  the  court  held  that  it  was  the  evident 
intention  of  the  legislature  to  place  an  employer  under  the  act 
from  the  day  of  the  filing  of  the  statement  and  the  approval 
by  the  board  took  effect  as  of  the  day  of  the  filing  of  the  notice 
and  that  under  such  circumstances  the  defendant  was  not  de- 
prived of  his  common  law  defenses  to  accidents  occurring  after 
such  time  of  filing  notice  and  before  approval  by  the  board.  The 
court  said:  "The  purpose  of  the  legislature  in  making  the  ap- 
proval of  the  board  retroactive  is  plain.  It  was  to  prevent  the 
penalizing  of  an  employer  by  the  denial  to  him  of  his  common- 
law  defenses  after  he  had  indicated  his  desire  to  come  under  the 
act,  during  the  short  period  which  must  elapse  between  the  filing 
of  his  election  and  its  approval  by  the  board."84 

Where  a  subcontractor  employee  failed  to  give  notice  to  the 
chief  employer,  on  whose  vessel  he  was  to  work,  that  he  rejected 
the  act,  it  was  held  that  he  was  bound  by  the  provisions  of  the 
act.86 

"Where  an  employer  elects  to  come  under  the  act,  the  employee 
wishing  to  retain  his  common  law  rights  must  give  the  required 

469;  Overruling  Woodruff  v.  Producer's  Oil  Co.,  142  La.  368,  76  So.  803; 
Boyer  v.  Crescent  Paper  Box  Factory,  143  La.  368,  78  So.  596,  17  N.  C.  C. 
A.  473,  2  W.  C.  L.  J.  71. 

82.  Daniels   v.   Chas.  Boldt  Co.,  78  W.  Va.  124,  88  S.  E.  613,  17  N.  C. 
C.    A.  472. 

83.  Troth  v.  Millville  Bottle   Works,   89   N.  J.  L.  219,  98  Atl.  435;    15 
N.  C.  C.  A.  722;    Brost  v.  Whitall-Tatum  Co.,  89  N.  J.  L.,  531,  L.  R.  A. 
1917D,  71,  99  Atl.   315.  15  N.  C.  C.  A.  723. 

84.  Bernard  v.  Michigan  United  Traction  Co.,  198  Mich.  497,  165  N.  W. 
846,  17    N.    C.    C.  A.  473. 

85.  Duart  v.   Simmons,   231  Mass.  313,  121  N.  E.  10,  3  W.  C.  L.  J.  136. 
56 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.       .       §7 

notice  to  his  employer  even  though  the  employer  has  failed  to 
comply  with  part  of  the  act." 

In  reference  to  a  provision  of  the  Louisiana  act  the  court 
said:  "Plaintiff  also  contends  that  the  said  act  is  inapplicable 
to  this  case,  for  the  further  reason  that  the  notice  required  by 
section  12  of  the  act  to  be  posted,  was  not  posted.  But  by  the 
very  terms  of  said  section  the  sole  effect  of  failure  to  post  said 
notice  is  to  extend  for  six  months  the  delay  within  which  notice 
of  the  injury  must  be  given  to  the  employer."87 

The  Porto  Rico  Workmen's  Compensation  Act  makes  it  com- 
pulsory for  employers  as  well  as  employees  to  operate  under 
the  act  and  neither  may  by  election  reject  the  act/8 

Under  the  Texas  act  where  an  employer  has  subscribed  to  the 
act  but  failed  to  give  the  statutory  notice  to  employees,  his 
election  is  not  binding  upon  employees  who  had  no  knowledge  of 
his  election  to  operate  under  the  act.89 

A  stevedore,  injured  while  loading,  and  entitled  to  the  pro- 
tection of  the  state  compensation  act,  did  not  elect  to  come 
under  the  act,  and  waive  his  remedy  in  admiralty,  by  signing  at 
the  request  of  an  attorney  the  notice  to  his  employer  contemp- 
plated  by  the  compensation  act.  And  after  his  claim  had  been 
filed  with  the  commission  he  was  permitted  to  withdraw  it  and 
proceed  in  admiralty.90 

In  a  Wisconsin  case  the  Supreme  court  said  it  must  assume  that 
the  legislature  adopted  with  full  understanding  of  its  legal  effect 
the  language  of  a  statute,  providing  that  certain  sections  shall 
not  apply  to  employees  engaged  in  switching  cars  for  a  railroad 

86.  Gilbert  v.  Wire  Goods  Co.,  233  Mass.  570  (1919),  124  N.  E.  479,  4 
W.  C.  L.  J.  714. 

87.  Colorado  v.  Johnson  Iron  Works,  146  La. ,  83  So.  381,  5  W.  C. 

L.  J.   392. 

88.  Camunas  v.  New    York   &    P.  R.  S.  S.  Co.   (1919)  260  Fed.  40,  4 
W.  C.    L.   J.  673. 

89.  Batson-Milholme  Co.  v.  Faulk,  —  Tex.  Civ.  App.  — ,    (1919)    209 
S.  W.  837,  3  W.  C.  L.  J.  805. 

90.  Siebert   v.    Patapaco  Ship  Celling  &  Stevedore  Co.,  253  Fed.  685, 
3   W.   C.  L.  J.  219. 

57 


§8    -  WORKMEN'S  COMPENSATION  LAWS. 

company,  unless  both  employer  and  employee  have  accepted  the 
provisions  of  the  act.91 

Where  the  act  of  the  state  of  Maine  required  an  assenting  em- 
ployer who  was  conducting  more  than  one  business  to  specify 
which  business  he  desired  to  conduct  under  the  provisions  of  the 
act,  a  failure  to  so  specify  made  him  a  nonassenting  employer  as 
to  that  branch  of  his  business.92 

§  8.  Proof  of  Election. — In  a  Texas  case  in  which  the 
testimony  was  conflicting  on  the  question  of  whether  the  req- 
uisite statutory  notice  had  been  given  the  employee  by  the  em- 
ployer so  as  to  confine  the  employee's  remedy  to  the  act,  the 
court  said:  "The  Texas  law  does  not  recognize  the  giving  of 
notice  by  posting,  and  we  are  not  prepared  to  hold  that  mere 
posting  in  the  place  of  business  would  as  a  matter  of  law  be 
notice.  It  might  under  certain  circumstances  be  sufficient  to 
show  that  an  employee  had  actual  notice,  while  under  other  cir- 
cumstances it  might  be  insufficient  to  convey  notice  to  the  em- 
ployee. The  posting  of  notices  might  be  sufficient  to  carry  the 
question  of  notice  to  the  jury,  but  could  not  be  held  notice  by 
the  court."93 

Under  the  Texas  act  the  question  of  whether  the  subscribing 
employer  has  complied  with  the  act  in  the  matter  of  notice  so  as 
to  bring  his  employee  under  the  act  is  properly  a  question  to 
be  established  at  the  trial  of  the  employee's  suit  for  damages  at 
common  law.  Evidence  is  admissable  as  to  the  posting  of  notices 
after  the  accident,  being  material  and  pertinent  as  bearing  upon 
the  question  as  to  whether  the  employer  was  to  the  knowledge 
of  the  injured  employee  a  subscriber  under  the  act.9* 

In  proving  that  an  employer  has  elected  to  reject  the  Illinois 
Workmen's  Compensation  Act  of  1911,  a  copy  of  the  notice  of 

91.  Waldum  v.   Lake   Superior  Terminal  &  Transfer  Co.  169  Wis.  137, 
170  N.  W.  729,  3  W.  C.  L.  J.  671. 

92.  Fournier's  Case,  -    -  Me. ,  1921,  113  Atl.  27. 

93.  Kampmann    v.   Cross,    -     -  Tex.    Civ.  App.  ,    194  S.  W.  437 

(1917)   17  N.   C.  C.   A.  473. 

94.  Kampmann  v.  Cross.  -    -  Tex.   Civ/  App. ,   194  S.  W.  437,  17 

N.  C.  C.  A.  474;    Ellsworth  v.  Indus.  Comm.,  290  111.  514. 

58 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §8 

election  certified  to  by  the  person  having  charge  of  the  original 
is  admissible  as  the  best  evidence.06 

It  has  been  held  that  proof  of  the  filing  of  notice  with  the 
Industrial  Board  as  to  election  to  accept  or  reject  the  Illinois 
Workmen's  Compensation  Act  of  1913,  in  compliance  with  the 
act,  is  sufficiently  made  by  proving  a  copy  of  the  notice  filed, 
certified  by  the  secretary  of  the  board,  and  under  its  seal.90 

It  is  held  in  Illinois  that  the  posting  of  the  statutory  notices 
of  election  and  rejection  of  the  act  may  be  proved  by  those  who 
saw  the  posted  notices  and  especially  whore  the  notice  liad  become 
dimmed  or  destroyed.07 

In  an  action  by  an  employee  against  liis  employer  a  rrrtilioil 
copy  of  a  notice  dated  after  the  accident  and  showing  that  the 
employer  elected  to  come  under  the  act  as  of  that  date  and  had 
not  been  under  it  before  is  competent  as  an  admission  that  the  em- 
ployer was  not  under  the  act  at  the  time  the  notice  was  filed.88 

It  has  been  held  that  where  an  employer  who  has  been  sued  for 
damages  claims  the  benefits  of  the  Maryland  Compensation  Act 
he  must  plead  and  prove  compliance  with  the  act.90 

In  a  California  case  where  an  employee  sued  for  damages  and 
did  not  allege  in  his  complaint  that  the  defendant  had  accepted 
the  act  of  1911  but  did  allege  negligence,  in  overruling  a  de- 
murrer to  the  petition  the  court  said:  "If  such  election  had  been 
made,  the  fact  would  be  within  the  knowledge  of  the  defendants, 
and  we  think  that  the  burden  was  upon  them  to  plead  such  fact 
in  bar  of  the  action,  if  the  fact  existed.  The  plaintiff  was  entitled 
to  assume  that  his  ordinary  right  of  action  continued  to  exist."1 

In  the  absence  of  a  special  plea  denying  the  allegations  of  the 
declaration  alleging  that  the  employer  had  elected  to  reject  the 

95.  Synkus   v.   Big  Muddy  Coal   &  Iron  Co.,   190  111.  App.  602   (1919). 

96.  Kleet  v.  Southern  Illinois  Coal  &  Coke  Co.,  197  111.  App.  243  (1915). 

97.  Kleet   v.  Southern   Illinois    Coal  &    Coke    Co.,  197  111.  App.  243: 
Volin  v.  St.   Louis   &  O'Fallon  Coal  Co.,  203  111.  App.   126. 

98.  Garrett    v.    Anglo — American    Provision    Co.,    205    111.    App.    411; 
Haynes  v.  Saline  County  Coal  Co.,  206  111.  App.  264. 

99.  Salvuca  v.  Ryan  &  Reilly  Co.,  129  Md.  235;  .98  Atl.  675. 

1.    Mlckel  v.  Althouse,  38  Cal.  App.  321,  176  Pac.  51,  17  N.  C.  C.  A.  478. 

59 


§9  WORKMEN'S  COMPENSATION  LAWS. 

act,  proof  as  to  the  execution,  filing  and  posting  of  notice  re- 
specting such  election  is  waived.2 

Where  an  employee  was  hired  at  a  daily  wage  before  the  em- 
ployer became  subject  to  the  compensation  law,  but  the  employer 
became  subject  to  it  17  days  before  the  accident,  the  employee 
was  not  required  to  file  daily  a  notice  with  the  employer  that  he 
rejected  the  act.  He  was  not  presumed  to  be  bound  by  the  act 
unless  he  remained  in  the  same  employment  without  rejecting  the 
act.  for  more  than  thirty  days  after  the  employer  had  become  sub- 
ject to  the  act.3 

Where  an  administratrix  brought  an  action  at  law  for  damages 
against  one  whose  alleged  negligence  caused  the  death  of  her 
husband,  and  she  was  defeated  on  the  merits,  she  did  not  thereby 
make  an  election  which  barred  her  claim  under  the  compensation 
act  for  benefits  to  the  widow  and  minor  children.4 

It  was  held  under  the  Ohio  Act  that  where  an  employer  had 
elected  to  come  under  the  act  and  filed  his  bond  as  required  within 
the  month  of  January,  the  mere  fact  that  his  bond  was  not  ap- 
proved by  the  Board  until  February  3rd,  did  not  deprive  him  of 
the  protection  of  the  act  as  to  an  accidental  injury  occurring  in 
January.  He  should  not  be  penalized  because  of  the  delay  of  an 
administrative  board  in  the  performance  of  a  ministerial  duty.5 

§  9.    Effect,  Contractual  Nature  of  Election  and  Duress. — If 

both  employer  and  employee  have  elected  to  accept  the  act  it  is 
generally  considered  as  becoming  a  part  of  their  employment  con- 
tract even  though  the  contract  was  made  before  the  act  went  into 
effect.6  Since  an  agreement  or  meeting  of  minds  is  necessary  to 

2.  Haynes  v.  Saline  County  Coal  Co.,  206  111.  App.  264. 

3.  Lemley  v.  Doak  Gas  Engine  Co., Cal.  App. ,  180  Pac.  671, 

4  W.  C.  L.  J.  145   (1919). 

4.  State  Indus.  Comm.  v.  Brady  &  Gieo,  178  N.  Y..S.  519,  5  W.  C.  L. 
J.    114. 

5.  Ginnochio  v.  Hydraulic   Press  Brick  Co.,   266  Fed.  564,  6  W.   C.  L. 
J.  615. 

6.  State  ex  rel.  Nelson-Spellisey  Co.  v.  Dist.  Court  of  Meeker  Co.,  128 
Minn.  221,  150  N.  W.  623,  11  "N.  C.  C.  A.  636;    Appeal  of  Hotel  Bond  Co., 
89  Conn.  143,  93  Atl.  245;     Rounsville  v.  Central  R.  R.  Co.,  87   N.  J.  L. 
371,  94  Atl.,  392;    Deibeikis  v.  Link-Belt  ,Co.,  261  111.  454,  104  N.  E.  211, 

60 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §9 

the  making  of  a  valid  contract,  the  employee  cannot  accept  the 
act  and  thereby  bring  his  employer  under  it  if  the  latter  has  re- 
jected the  act.7  Nor  can  the  employer  expect  the  employee  to  be 
bound  by  the  act  when  the  employer  has  rejected  it.8 

Likewise  where  the  employer  alone  elects  to  come  under  the 
act  he  cannot  thereby  bring  his  employees  under  it  unless  the 
act  so  provides.9  Nor  does  the  employer's  election  to  come  under 
the  act  after  an  accident  happens  to  an  employee  give  such  em- 
ployee the  right  to  receive  compensation  from  the  employer  for 
such  accident.10  In  both  cases,  where  either  the  employer  or  em- 
ployee rejects  the  act  the  parties  are  remitted  to  their  action  at 
law,11  and  are  governed  by  the  principles  of  law  applicable  to 
such  actions  except  alone  as  to  the  matter  of  defenses. 

Ann.  Cas.  1915A,  241;  Drtina  v.  Charles  Tea  Co.,  281  111.  259,  118  N.  E. 
69,  1  W.  C.  L.  J.  320;  McRoberts  v.  National  Zinc  Co.,  93  Kan.  364, 
144  Pac.  247;  Shade  v.  Grove  Lime  &  Cement  Co.,  92  Kan.  146,  139 
Pac.  1193;  Lynch  v.  Pennsylvania  R.  R.  Co.,  88  N.  J.  L.,  408,  96  Atl.  395; 
Anderson  v.  North  Alaska  Salmon  Co.,  2  Cal.  I.  A.  C.  Dec.  241;  Gooding 
v.  Ott,  77  W.  Va.  487,  87  S.  E  863;  Rodigen  v.  Sanitary  Dist.  of  Chicago, 
Bulletin  No.  1,  111.  p.  129;  Kennerson  v.  Thames  Towboat  Co.,  98 
Conn.  367,  94  Atl.  497;  Shanahan  v.  Monarch  Engineering  Co.,  219  N.  Y. 
469,  114  N.  E.  795;  Doey  v.  Rowland  Co.,  224  N.  Y.  30,  120  N.  E.  63,  2 
W.  C.  L.  J.  669;  See  Martin  v.  Kennecott  Copper  Corp.  (D.  C.)  252 
Fed.  207,  2  W.  C.  L.  J.  867:  Hagenback  v.  Leppert  (Ind.  App.)  117 
X.  E.  531,  1  W.  C.  L.  J.  64;  Reitmeyer  v.  Coxe  Bros.  &  Co.  Inc.  264  Pa. 
372,  1919,  107  Atl.  739,  4  W.  C.  L.  J.  644;  Philps  v.  Guy  Drilling  Co., 

143  La.  951,  79  So.  549,  17  N.  C.  C.  A.  469;     Rogers  v.  Rogers, Ind. 

App. ,  (1919),  122  N.  E.  778,  4  W.  C.  L.  J.  68. 

7.  Favro,  Admr.  v.  Superior  Coal  Co.,  188  111.  App.  203;    Dietz  v.  Big 
Muddy  Coal  &   Iron  Co.,  263  111.  480,  105  N.  E.   289,  5  N.  C.   C.  A.  419; 
Price  v.  Clover  Leaf  Coal  Mine  Co.,  188  111.  App.  27. 

8.  Crooks  v.  Tazewell  Coal  Co.  263  111.  343,  105  N.  E.  132,  5  N.  C.  C. 

A.  410,  Ann.  Cas.  1915C,  304;    Bendykson  v.  Lyons,  -    -  Mich.  ,  161 

N.  W.  945,  16  N.   C.  C.  A.  744. 

9.  Kampmann  v.  Cross,  -     -  Tex.  Civ.  App. ,  194  S.  W.  437,  17 

N.   C.  C.  A.  472;     Duart  v.  Simmons,  231  Mass.  313,    121   N.    E.    10,    3 

W.  C.  L.  J.  136;    Batson  Milholme  Co.  v.  Falk,  -    -  Tex.  Civ.  App.  , 

209  S.  W.  837.  3  W.  C.  L.  J.  805. 

10.  Shevchenko  v.  Detroit  United  Ry.  Co..  189  Mich.  421,  155  N.  W.  423. 

11.  Hughes  v.  Warman  Steel  Casting  Co.,  174  Cal.  44,  163  Pac.  885, 

17  N.  C.   C.  A.   517;    Hodges  v.  Swastika  Oil  Co., Tex.  Civ.   App. 

185  S.  W.    369.   17    N.   C.    C.  A.     519;    Synkus    v.  Big    Muddy  Coal    ft 
Iron  Co.,  190   111.  App.    602,  17  N.  C.  C.  A.  514;     Skelton  ft    Wear    v. 

61 


§9  WORKMEN'S  COMPENSATION  LAWS. 

It  has  been  held  in  a  case  where  the  employer  induced  his  em- 
ployee by  means  of  fraud,  duress  or  undue  influence  to  elect  to 
come  under  the  act,  such  election  was  only  voidable  and  was  af- 
firmed by  the  employee's  failure  to  repudiate  such  election,  after 
discussing  the  effect  thereof  with  his  co-employees,  and  under- 
standing that  it  affected  his  right  to  compensation.12 

If  both  accept  the  act,  they  are  as  a  general  rule  held  to  accept 
all  its  provisions,  for  themselves,  their  representatives,  heirs,  next 
of  kin,  dependents,  etc.,  and  are  released  from  and  deprived  of 
all  other  rights  against,  and  liabilities  to,  each  other13  though  not 
as  to  third  persons. 

Wolf,  -   -  Tex.  Civ.  App. ,  200  S.  W.  901,  17  N.  C.  C.  A.  479;    Smith 

v.  Hyne,  -    -  Mich. ,  175  N.  W.  293,  5  W.  C.  L.  J.  407;     Barnett  v. 

Coal  &  Coke  Ry.  Co.,  81  W.  Va.  251,  94  S.  E.  150,  17  N.  C.  C.  A.  514; 
Marshall  v.  City  of  Pekin,  276,  111.  187;  Wendzinski  v.  Madison  Coal 
Corporation,  282  111.  32,  118  N.  E.  435,  ;7  N.  C.  C.  A.  517;  Rev'g  203 
111.  App.  1;  French  v.  Cloverleaf  Mining  Co.,  190  111.  App.  400;  Balen 
v.  Colfax  Consol.  Coal  Co.,  183  la.  1198,  168  N.  W.  246,  2  W.  C.  L. 
J.  621;  Crooks  v.  Tazewell  Coal  Co.,  263  111.  343,  105  N.  E.  132. 

12.  O'Rourke  v.  Cudahy  Packing  Co.,  1  Conn.  Comp.,  Dec.  8;    Stricklen 
v.  Pearson  Const.  Co.,  -    -  la., ,  169  N.  W.   628,  3  W.  C.  L.  J.   291. 

13.  McRoberts  v.  National  Zinc  Co.,  S3  Kan.  364,  144  Pac.  247;    Young 
v.  Sterling  Leather  Works,  94  N.  J.  L.  289,  102  Atl.   395,  1  W.  C.   L.    J. 
653;    State  v.   Carroll,  94  Wash.  531,   14   N.  C.  C.  A.  932,  162   Pac.  593; 
Maloney  v.  Levy,  etc.,  Co.,  170  App.  Div.  470,  163  N.  Y.  S.  505;    Winter 
v.  Dollger  Brew   Co.,  175  App.  Div.  706,   162  N.  Y.  S.  469;    Consolidated 

Kansas  City  Smelting  and  Refining  Co.,  v.  Dean,   (1916),  Tex.  Civ. 

App. ,  189    S.   W.  747;    Peet   v.    Mills   76  Wash.  437,  136  Pac.    685, 

Ann.  Gas.  1915  D,  154,  4  N.  C.  C.  A.  786,  L.  R.  A.  1916A,  358;    Milwaukee 
v.  Althoff,  156   Wis.    68,  145  N.   W.    238,   L.  R.  A.  1916A  327;     White    v. 
Fuller  Co.,  226   Mass.    1,  114  N.  E.  829;      Martin    v.    Kennecott  Copper 
Corp.   (D.  C.)   252  Fed.  207,  2  W.  C.  L.  J.  867.    In  Massachusetts  it  has 
been  held  that  the   adoption  of  the  compensation  principle   by   a    child 
does  not  prevent  a   parent   from  recovering   common    law   damages  be- 
cause  of  the  child's  death.     King  v.  Viscolaid  Co.,    219    Mass.  420,  106 
N.  E.  988,  7  N.  C.  C.  A.  254;     In  re  Cripps  v.  Aetna  Life  Ins.  Co.,  216 
Mass.  586,  104  N.  E.  565;    but  see  Hall  v.  Thayer  &  Co.,  225,  Mass.  151, 
113   N.  E.  644;   Gregutis  v.  Waclark  Wire  Works,    86    N.  J.  L.  610,  92 
Atl.  354;    Rice  v.  Garrett    (Civ.  App.)  194  S.   W.   667;     Hartman  v.  Uii- 
excelled  Mfg.  Co.,  93  N.  J.  L.  418  (1919),  108  Atl.  367,  5  W.  C.  L.  J.  422; 
Buonfiglis  v.  Neumann  &  Co.,  93  N.  J.  L.  174  (1919).  107  Atl.  285,  4  W.  C. 

62 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §9 

In  a  New  York  case  the  court  said:  "There  does  not  appear 
to  be  any  serious  question  that  the  claimant  would  be  entitled 
to  the  award  which  has  been  made  in  this  case,  except  for  the 
fact  that  the  present  claimant,  as  administratrix  of  the  estate 
of  her  decedent,  brought  an  action  in  the  Supreme  Court  to 
recover  for  the  death  of  the  intestate,  in  which  action  she  was 
defeated  upon  the  merits,  and  it  is  now  urged  that,  having  elected 
to  sue,  the  claimant  has  made  an  election  which  operates  as  a 
b;ir  to  this  proceeding  under  the  Workmen's  Compensation  Law 
(Consol.  Laws,  c.  67).  The  complete  answer  to  this  contention, 
it  seems  to  us,  is  the  fact  that  'Clementina  Balais,  as  administratrix 
of  the  goods,  chattels,  and  credits  of  Qiajcomo  Balais,  deceased,' 
is  in  law,  an  entirely  different  person  from  'Clementina  Balias 
and  minor  dependents,'  making  a  claim  for  compensation  under 
the  "Workmen's  Compensation  Law.  'It 'has  been  repeatedly  held,' 
say  the  court  in  Leonard  v.  Pierce,  182  N.  Y.  432,  75  N.  E.  313, 
1  L.  R.  A.  (N.  S.)  161,  'that  persons  suing  or  being  sued  in 
their  official  or  representative  capacity  are,  in  contemplation  of 
law,  distinct  persons  and  strangers  to  any  right  or  liability  as  an 
individual,  and  consequently  a  former  judgment  concludes  a  party 
only  in  the  character  in  which  he  was  sued.  If  the  judgment  was 
for  or  against  an  executor,  administrator,  assignee,  or  trustee,  it 
would  not  preclude  him,  in  action  affecting  him  personally,  from 
disputing  the  findings  or  judgment,  although  the  same  questions 
are  involved.'  Not  only  are  the  parties  different,  but  the  subject- 

L.  J.,  521;  State  Indus.  Comm.  v.  Brady  &  Gloe,  178  N.  Y.  S.  519  (1919), 
5  W.  C.  L.  J.  114;  Ruddy  v.  Morse  Dry  Dock  &  Repair  Co.  (1919) 
176  N.  Y.  S.  731,  4  W.  C.  L.  J.  448;  Basso  v.  John  Clark  &  Son.  Inc. 
(1919)  177  N.  Y.  S.  484,  4  W.  C.  L.  J.  530;  Carlson  v.  Minneapolis  St. 
Ry.  Co.  (1919),  143  Minn.  129.  173  N.  W.  405,  4  W.  C.  L.  J.  513; 

Stricklen  v.  Pearson  Const.  Co., Iowa ,  169  N.  W.  628,  3  W.  C.  L. 

J.  291;  Penn's  Administrator  v.  Bates  &  Rogers  Const.  Co.,  183  Ky. 
529,  209  S.  W.  513,  3.  W.  C.  L.  J.  731;  Nulle  v.  Hardman  Peck  &  Co., 
173  N.  Y.  S.  236,  3  W.  C.  L.  J.  343;  Boyle  v.  A.  C.  Cheney  Piano 
Action  Co.,  184  N.  Y<  S.  374  (1920),  7  W.  C.  L.  J.  93;  Colorado  v. 

Johnson   Iron   Works,  -     -  La. ,   183   So.   381,   5   W.  C.   L.   J.   392; 

White   v.   Slattery   Co.,   --   Mass.   --    (192C),   127   N.    E.    597,   6   W.   C. 

L.  J.  323;    Williams  v.  Blodgett  Const.  Co.,  -    -  La. ,  (1920),  84  So. 

115,  6  W.  C.  L.  J.  53;    Hyett  v.  N.  W.  Hospital  for  Women  ft  Children. 

Minn.   ,  (1920),   180  N.  W.    552,  7    W.  C.    L.  J.  337. 

63 


§10  WORKMEN'S  COMPENSATION  LAWS. 

matter  involved  is  different.  In  the  one  case  the  statute  provides 
a  definite  sum  to  each  dependent,  based  upon  the  actual  or  con- 
structive earning  power  of  the  decedent  at  the  time  of  the  accident, 
without  reference  to  negligence,  while  in  the  other  the  jury  are 
permitted  only  to  give  'a  fair  and  just  compensation  for  the 
pecuniary  injuries,  resulting  from  the  decedent's  death,  to  the 
person  or  persons  for  whose  benefit  the  action  is  brought'  (Code 
of  Civil  Procedure,  Sec.  1904) ,  and  the  amount  is  to  be  distributed 
as  though  it  constituted  a  part  of  an  unbequeathed  estate  (Code 
of  Civil  Procedure,  Sec.  1903).  We  are  of  the  opinion  that  the 
election  of  an  administratrix  cannot  be  a  bar  to  a  claim  on  behalf 
of  the  individuals  who^are  given  definite  rights  under  the  statute, 
and  that  the  award  should  not  be  disturbed."14 

It  is  held  under  the  Oklahoma  Act  that  an  award  of  compensa- 
tion on  account  of  an  injury  which  later  resulted  in  death  does 
not  preclude  an  action  for  damages  by  the  personal  representative 
on  account  of  such  death.15  The  Utah  Act  was  amended  in  this 
respect  in  1921  to  make  compensation  the  exclusive  remedy. 

§  10.  Election,  When  Exempted  by  Having  Less  Than  Stat- 
ed Number  of  Employees. — Many  of  the  Compensation  Acts  pro- 
vide that  they  shall  apply  only  to  employers  and  the  employees 
of  employers  having  a  stated  number  or  more  employees.  This 
number  ranges  from  three  in  some  states  to  sixteen  in  Alabama.16 
Most  of  these  acts  also  provide  a  specific  method  by  which  such 
exempted  employers  and  employees  may  elect  to  come  under  the 
act,  which  method  is  usually  the  same  as  that  provided  for 
election  to  come  under  the  act,  where  election  is  not  presumed, 
i.  e.  notice  by  the  employer  and  employees  to  each  other  and 
to  the  commission  or  board.  After  such  exempted  employer  has 
elected  to  come  under  the  act  and  his  employees  have  also  com- 
plied with  the  act  in  so  far  as  it  is  required  of  them  the  em- 

14.  In  re  Balias,  189  App.  Div.  408,  178  N.  Y.  Swpp.  519,  5  W.  C.  L.  J. 
114. 

15.  Lahoma    Oil  Co.  v.    Indus.    Comm.,    —  Okla.    — ,    175     Pac.    836. 

16.  Alabama  11,  Alaska  5,  Connecticut  5,  Delaware  5,  Kansas  5,  Ken- 
tucky 5,  Maine  6,  Missouri  5,  New  Hampshire  5,  New  Mexico  5,  Ohio  5, 
Oklahoma  3,  Porto  Rico  5,  Texas  3,  Tennessee  10,  Vermont  11,  Virginia 
11,  Wisconsin  3,  Wyoming  3. 

64 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §11 

ployer  is  then  bound  by  the  act  the  same  as  if  he  had  not  been 
exempted." 

There  appears  to  be  little  justification  for  these  numerical 
exemptions.  They  seem  to  have  been  prompted  originally  by 
legislative  expediency  in  order  to  insure  the  passage  of  the  act 
and  thus  establish  the  compensation  principle  in  the  respective 
states.  They  introduce  complications  into  the  administration  of 
the  acts,  in  that  it  is  often  difficult  to  determine  when  the  em- 
ployer has  the  required  number  of  employees,  "regularly  em- 
ployed," that  would  require  him  to  comply  with  the  provisions 
of  the  act  and  the  employee  is  for  the  same  reason  uncertain 
whether  or  not  he  is  entitled  to  the  benefits  of  the  act. 

It  has  been  held  by  the  supreme  court  of  the  United  States 
that  these  exemptions  do  not  constitute  such  arbitrary  discrim- 
inations as  make  the  acts  unconstitutional.18 

§  11.  Election  by  Farmers,  Employers  of  Domestic  Servants, 
Casual  Employees  and  Outworkers. — These  employments  are  ex- 
cepted  from  almost  all  the  American  Compensation  Acts.19  Some 
of  the  Acts  provide  methods  whereby  these  employments  may  be 
brought  under  the  act  when  both  employer  and  employees  so  de- 
sire but  the  employers  do  not  suffer  the  penalty  of  being  deprived 
of  their  common  law  defenses  if  they  do  not  elect  to  come  under 
the  act.10 

17.  McMillan  v.  Ellis,  —  Kan.  — ,  192  Pac.  744,  (1920),  6  W.  C.  L.  J. 
679. 

18.  Jeffery  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  59  L.  Ed.  364,  7  N.  C.  C.  A. 
570. 

19.  Agriculture  expressly  or  ImpHedly  exempted  from  all  acts  except 
New  Jersey  and  Hawaii.     Domestic  servants  exempted  from  all  acts  ex- 
cept New  Jersey. 

20.  Shafer  v.  Parke  Davis  &  Co.,  Mich.  Wk.  Comp.  Cases  (1916).  7,  192 
Mich.  577,  150  N.  W.  304;    Texas  Refining  Co.  v.  Alexander,  —  Tex.  Civ. 
App.  — ,  202  S.  W.  131,  17  N.  C.  C.  A.  535;  Uphoff  v.  Ind.  Bd.  of  HI.,  Ill 
N.  E.  128,  271  111.  312;    Wangler  Boiler  &  Sheet  Metal  Works  v.  Indus. 
Comm.,  —  111.  — ,  122  N.  E.  366,  3  W.  C.  L.  J.  617;    Slycord  v.  Horn,  — 
Iowa  — ,  162  N.  W.  249.  Al  W.  C.  L.  J.  589;    Miller  v.  United  Fuel  Gas 
Co.,  —  W.  Va.  — .  (1921),  106  Atl.  419;  Wis.,  1921.  §  2394-7. 

65 

W.  C.— 5. 


§11  WORKMEN'S  COMPENSATION  LAWS. 

Chief  Justice  Kugg  of  the  Supreme  Court  of  Massachusetts  in 
construing  this  provision  of  the  Massachusetts  Act  said:  "The 
Workmen's  Compensation  Act  was  not  intended  to  confer  its 
advantages  upon  farm  laborers,  or  to  impose  its  burdens  upon 
farmers.  St.  1911,  c.  751,  pt.  1,  art.  2.  The  legislative  policy 
of  exempting  them  from  statutory  benefits  and  liabilities  estab- 
lished in  addition  to  those  of  the  common  law  disclosed  in  the 
Employer's  liability  Act,  St.  1909,  c.  514,  art.  142,  has  been  con- 
tinued in  the  Workmen's  Compensation  Act.  A  farmer  employ- 
ing laborers  in  agriculture  suffers  no  harm  in  not  undertaking 
to  become  a  subscriber  under  the  Workmen's  Compensation  Act. 
Hence,  it  is  apparent  that  a  farmer  who  chooses  to  avail  himself 
of  its  terms  and  thereby  to  confer  the  boon  of  its  protection 
upon  his  employees,  does  so  on  other  grounds  than  those  which 
might  actuate  the  manufacturer  or  other  employers  of  labor. 

*  *  *  The  act  is  a  practical   measure    designed   for   use   among 
a  practical  people.     There  appears  to  be  no   reason   for   saying 
that  a  farmer  may  not  adopt  it  if  he  desires.    Any  contract  of 
insurance  made  by  him  under  its  terms  is  valid^and  enforceable. 
On  the  other  hand,  if  he  does  not  desire  to  make  it  available,  for 
all  of  his  employees,  there   is   no    insuperable    objection   to    his 
undertaking    an    insurance    for    a    limited  portion  of  them.     If 
there  are  those,  separable  from  others  by  classification  and  defi- 
nition, whose  labor  is  more  exposed  or  dangerous  or   whom   he 
may  desire  to  protect  for  any  other  reason,  there  is  nothing  in 
the  act  reasonably  interpreted  to  show  why  he  may  not  do  so. 

*  *  *  The  exemption  applies  to  all  farmers   so   far   as   concerns 
farming    operations    whether    carrying    on    other    business    or 
not."21 

These  provisions  of  compensation  acts  which  thus  except  or 
exempt  certain  employments  from  the  operation  of  the  act  are 
not  in  violation  of  the  "equal  protection  of  the  laws"  provision 
of  the  Federal  Constitution.22 

21.  Keaney  v.  Tappen  et  al.(  217  Mass.  5,  104  N.  E.  438,  4  N.  C.  C..  A. 
556;    Seggebrush  v.  Indus.  Comm.,  288  111.  163,  (1919),  123,  N.  E.  276,  4  W. 
C.  L.  J.  156. 

22.  New  York  Central  Ry.  Co.  v.  White,  243  U.  S.  188,  61  L.  Ed.  667, 
37  Sup.  Ct.  Rep.  247,  13  N.  C.  C.  A.  943. 

66 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §12 

§  12.  Election  as  to  Part  Only  of  Employees. — It  is  a  per- 
tinent question  under  elective  and  partially  elective  compensa- 
tion acts  whether  the  employer  has  the  right  to  accept  the  act  as 
to  a  part  of  his  employees  and  reject  it  as  to  the  remainder.  Can 
an  employer  accept  the  act  as  to  his  factory  employees  and  re- 
ject it  as  to  his  traveling  salesmen,  or  clerical  help?  It  has  been 
urged  that  since  each  individual  employee  has  the  right  to  say 
whether  he  will  be  bound  by  his  employer's  election  of  the  law 
that  therefore  the  employer  should  have  an  equal  right  to  make 
this  discrimination  as  to  his  employees.  Some  of  the  acts,  such 
as,  for  example,  New  York,  cover  only  certain  specifically  named 
employments,  or  as  in  the  case  quoted  from  in  the  previous  sec- 
tion, whore  th*  employer  has  two  or  more  classes  of  employees, 
one  of  which  is  not  covered  by  the  act,  he  may  elect  to  come 
under  the  act  as  to  those  classes  that  are  not  exempted  from 
the  act,  but  would  not  be  bound  to  pay  compensation  as  to  the 
exempted  class  unless  he  also  especially  elected  as  to  that  class.2-" 
It  is  however  a  different  case  to  discriminate  between  classes  of 
employees  who  are  presumed  to  come  under  the  act.  unless  they 
or  their  employer  rejects  it.  If  the  employer  accepts  the  act  it 
is  generally  held  that  he  accepts  for  all  of  his  employees  con- 
nected with  the  business  covered  by  the  act,  whether  such  em- 
ployees be  factory  workers,  traveling  salesmen,  clerical  help,  or 
what  not.24  In  Michigan  it  is  held  otherwise.25  Though  it  has 
been  held  in  Michigan  that  where  a  chemical  company  also  con- 
ducts a  farm  as  an  incident  to  its  business  and  accepts  the  act 
generally  its  farm  employees  are  not  thereby  brought  under  the 
act.28  Farm  hands  of  an  Illinois  employer  are  not  covered  by 

23.  Shafer  v.  Parke,  etc.,  192  Mich.  577,  150  N.  W.  304;    Keaney  v.  Tap- 
pan,  217  Mass.  5,  104  N.  E.  438,  4  N.  C.  C.  A.  556. 

24.  Garls  v.  Pekin  Cooperage  Co.,  111.  Ind.  B'd.  No.  561,  Oct.  5.  1914,  11 
N.  C.  C.  A.  322;    In  re  Cox,  225  Mass.  220,  114  N.  E.  281. 

25.  Anderson  v.  McVannel,  202  Mich.  29,  167  N.  W.  860,  2  W.  C.  L.  J. 
285,  17  N.  C.  C.  A.  467;    Kauri  v.  Messner,  198  Mich.  126,  164  N.  W.  537, 
17  N.  C.  C.  A.  466;  Bayer.  \.  Bayer,  191  Mich.  423,  158  N.  W.  109.  17  N. 
C.  C.  A.  467. 

26.  Shafer   v.  Park,  Davis  *    Co..    192  Mich.  577,    159    N.  W.  304,  14 
N.  C.  C.  A.  1079. 

67 


§13  WORKMEN'S  COMPENSATION  LAWS. 

the  act  merely  because  the  employer    also    conducts   an    extra- 
hazardous  business.27 

§  13.  Election  to  Reject  and  Abolition  of  Common  Law  De- 
fenses.— Unless  the  negligence  of  the  servant  was  wilful28  many 
of  the  acts  which  are  elective  in  form  deprive  the  employer  of  the 
three  common  law  defenses  of  negligence  of  fellow  servant,  as- 
sumed risk  and  contributory  negligence,  in  actions  for  dam- 
ages when  he  has  expressly  or  through  default29  rejected  the 

27.  Vaughn's  Seed  Store  v.  Simonini,  275  111.  477,  114  N.  E.  163,  14 
N.  C.  C.  A.  1075. 

28.  Smith  v.  Hyne,  —  Mich.  — ,   (Dec.  1919)   175  N.  W.  293,  5  W.  C. 
L.  J.  407;    Lydman  v.  De  Haas,  185  Mich.  128,  151  N.  W.  718,  8  N.  C.  C. 
A.  649. 

29.  National  Enameling  &  Stamping  Co.  v.  Padgett,  163  C.  C.  A.  280,  251 
Fed.  30,  17  N.  C.  C.  A.  517;    Crucible  Steel  Forge  Co.  v.  Moir,  219  F. 
151,  135  C.  C.  A.  49;    Price  v.  Clover  Leaf  Coal  Mining  Co.,  188  111.  App. 
27j    Boldt  v.  American  Bottle  Co.,  208  111.  App.  256,  17  N.  C.  C.  A.  516; 
Strom  v.  Postal  Tel.  Cable  Co.,  200  111.  App.  431;    Lydman  v.  De  Haas,  185 
Mich.  128,  151  N.  W.  718,  8  N.  C.  C.  A.  649;    Wulff  v.  Bossier,  199  Mich. 
70,  165  N.  W.  1048,  17  N.  C.  C.  A.  516;    Hughes  v.  Warman  Steel  Casting 
Co.,  174  Gal.  556,  163  Pac.  885;    Mitchell  v.  Swanwood  Coal  Co.,  182  la. 
1001,  166  N.  W.  391,  1  W.  C.  L.  J.  603;    Bednar  v.  Mt.  Olive  etc.  Coal  Co., 
197  111.  App.  251;    Bell  v.  Toluca  Coal  Co.,  272  111.  576,  112  N.  E.  311; 
Von  Boeckmann  v.  Corn  Products  Refin.  Co.,  274  111.  605,  113  N.  E.  902; 
Gayton  v.  Borsofsky,  230  Mass.  369,  119  N.  E.  831,  17  N.  C.  C.  A.  517; 
Bernabeo  v.  Kaulback,  226  Mass.  128,  115  N.  E.  279;    L.izotte  v.  Nashua 
Mfg.  Co.,  78  N.  H.  354,  100  Atl.  757;    Watts  v.  Ohio  Valley  Elect.  R.  Co., 
78  W.  Va.,  144,  88  S.  E.  659;    Nadeau  v.  Caribou  Water,  Light  and  Power 
Co.,  118  Me.  325  (1919),  108  Atl.  190,  5  W.  C.  L.  J.  238;    Ayshire  Coal  Co. 
v.  West,  —  Ind.  App.  — ,  (1919)  125  N.  E.  84,  5  W.  C.  L.  J.  216;  Lamberg 
v.  Central  Consumers  Co.,  184  Ky.  284,  (1919),  211  S.  W.  746,  4  W.  C.  L. 
J.  196;    West  Kentucky  Coal  Co.  v.  Smithers,  184  Ky.  211    (1919),  211 
S.  W.  580,  4  W.  C.  L.  J.  198;    New  Staunton  Coal  Co.  v.  Promm,  286  111.  254 
(1919),  121  N.  E.  594,  3  W.  C.  L.  J.  432;    Smith  v.  White,  —  La.  — ,  (1920), 
83  So.  584,  5  W.  C.  L.  J.  531;    Brown  et  al.  v.  Bristol  Last  Block  Co.,  — 
Vt,  — ,    (1920)    108    Atl.  922;    Long  v.    Foley,    82     W.  Va.    502,    96    S. 
E.  794,  17  N.  C.  C.  A.  514;    Noe  v.  Shoal  Creek  Coal  Co.,  207  App.  Div. 
615;    17  N.  C.  C.  514;    Smith  v.  Stover  Mfg.  Co.,  205  111.  App.  169;    Syn- 
kus  v.  Big  Muddy  Coal  and   Iron  Co.,  190  111.  App.  602,  17  N.  C.  C.  A. 
514;    Boldt  v.  American  Bottle  Co.,  208  111.  App.  578,  17  N.  C.  C.  A.  516; 
"Spichs  v.  Insull,  207  111.  App.  256.  Strom  v.  Postal  Tel.  Cable  Co.,  200  111. 
App.  431,  17  N.  C.  C.  A.  517;    Wulff  v.  Bossier,  199  Mich.  70,  165  N.  W. 

68 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §18 

act.80  Under  some  acts  contributory  negligence  may  be  ihown  not 
as  a  defense31  but  in  diminution  of  damages.82  The  employer  is  not 
deprived  of  the  common  law  defenses  in  an  action  for  damages  if 
he  has  elected  to  come  under  the  act  and  the  plaintiff  employee 
has  rejected  it.88  Practically  all  compensation  acts  provide  that 
the  employer  is  deprived  of  these  defenses  in  any  proceeding 
against  him  for  compensation  under  the  act.  These  provisions  are 
common  to  practically  every  elective  compensation  act,  they  being 
intended  in  the  nature  of  a  penalty  to  induce  both  employers  and 
employees  to  elect  to  come  under  the  act,  the  compulsory  form  of 
act  having  been  avoided  by  many  states,  because  of  the  fear  of 

1048;  17  N.  C.  C.  A.  517;  Gayton  v.  Borsofsky,  230  Mass.  369,  119  N.  E. 
831;  17  N.  C.  C.  A.  517;  Hodges  v.  Swastika  Oil  Co.,  —  Tex.  Civ.  App. 
— ,  185  S.  W.  369,  17  N.  C.  C.  A.  519;  Daly  v.  New  Staunton  Coal  Co.,  280 
111.  175,  117  N.  E.  413,  17  N.  C.  C.  A.  524;  Kittier  v.  Chicago  &  W.  I.  R. 
Co.,  203  111.  App.  439,  17  N.  C.  C.  A.  520;  Witchita  Falls  Motor  Co.  v. 
Meade,  —  Tex.  Civ.  App.  — ,  203  S.  W.  71,  17  N.  C.  C.  A.  521 ;  Robbins 
v.  Magoon  &  Kinball  Co.,  193  Mich.  200,  159  N.  W.  323,  17  N.  C.  C.  A.  521; 
Henshaw  v.  Boston  &  M.  R.  R.,  222  Mass.  459,  111  N.  E.  172,  17  N.  C.  C.  A. 
523;  Gibson  v.  Kennedy  Extension  Gold  Mining  Co.,  172  Cal.  294,  156 
Pac.  56;  17  N.  C.  C.  A.  525;  Stetson  v.  Mackinac  Transportation  Co.,  182 
Mich.  355,  148  N.  W.  759,  8  N.  C.  C.  A.  657;  Dooley  v.  Sullivan,  218  Mass. 
597,  8  N.  C.  C.  A.  658;  Dietz  v.  Big  Muddy  Coal  Co.,  263  111.  480,  5  N.  C. 
C.  A.  419,  105  N.  E.  289;  Foley  v.  Hines,  (1920)  111  All.  715,  7  W. 
C.  L.  J.  203;  West  Ky.  Coal  Co.  v.  Smithers,  —  Ky.  App.  — ,  221  S.  W. 
558,  6  W.  C.  L.  J.  177. 

30.  Roberts  v.  United  Fuel  &  Gas  Co.,  —  W.  Va.  — ,  (1919)   99  S.  E. 
549,  4  W.  C.  L.  J.  461;    Talge  Mahogany  Co.  v.  Burrows,  —  Ind.  — ,  130 
N.  E.  865. 

31.  Western  Coal  and  Mining  Co.  v.  Indus.  Comm.  —  111.  — ,  (1921), 
129  N.  E.  779;    Jackson  Hill  Coal  &  Coke  Co.  v.  McDaniel,  —  Ind.  App. 
— ,  131  N.  E.  408. 

32.  Hodges  v.  Swastika  Oil  Co.,  —  Tex.  Civ.  App.  — ,  185  S.  W.  369, 
17  N.  C.  C.  A.  523;    Bednar  v.  Mt.  Olive  &  Staunton  Coal  Co.,  197  111. 
App.  251,  17  N.  C.  C.  A.  625;    Day  v.  Chicago  M.  ft  St.  P.  Ry.  Co.,  208  111. 
App.  351,  17  N.  C.  C.  A.  533;    Lindblom  v.  Hazel  Mill  Co.,  91  Wash.  333, 
157  Pac.  998,  17  N.  C.  C.  A.  633. 

33.  Karney  v.  Northwestern  Malleable  Iron  Co.,  160  Wis.  316;    151; 
N.  W.  786;    Wendzinski  v.  Madison  Coal  Corporation,  282  111.  32,  118  N.  E. 
435;    Balken  v.  Cofax  Consolidated  Coal  Co.,  183  la.  1198,  168  N.  W.  246, 

17  N.  C.  C.  A.  612;    Bjork  v.  U.  S.  Bobbin  ft  Shuttle  Co. N.  H. , 

(1920),  111  All.  284,  6  W.  C.  L.  J.  707. 


§13  WORKMEN'S  COMPENSATION  LAWS. 

having  it  declared  unconstitutional,  as  in  the  case  of  the  early 
compulsory  New  York  Act. 

The  abolition  of  the  common  law  defenses,  as  provided  in  the 
compensation  acts,  has  been  universally  approved  by  the  courts 
as  a  proper  legislative  prerogative.34  "To  deprive  an  employer" 
(under  an  elective  act)  "of  the  right  to  assert  those  defenses  is 
not  an  exercise  of  the  police  power,  but  is  merely  a  declaration 
by  the  Legislature  of  the  public  policy  of  the  State  in  that  regard. 
The  right  of  the  Legislature  to  abolish  these  defenses  cannot  be 
seriously  questioned.  The  rules  of  law  relating  to  the  defenses 
of  contributory  negligence,  assumption  of  risk,  and  negligence  of 
a  fellow  servant  were  established  by  the  courts,  and  not  by  our 

34.  Hawkins  v.  Bleakley,  221  Fed.  378;  Hotel  Bond  Co.'s  appeal,  98 
Conn.  143,  93  Atl.  245;  Havis  v.  Cudahy  Ref.  Co.,  95  Kan.  505,  148  Pac. 
626;  Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H.  551,  94  Atl.  265;  Sexton 
v.  Newark  Dist.  Teleg.  Co.,  84  N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C.  A.  569; 
Ivea  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A. 
(N.  S.)  162,  1  N.  C.  C.  A.  517;  Opinion  of  the  Justices,  209  Mass.  607,  96 
N.  E.  308,  1  N.  C.  C.  A.  557;  Matheson  v.  Minneapolis  Street  R.  Co.,  126 
Minn.  286,  148  N.  W.  71,  5  N.  C.  C.  A.  871;  Borgnis  v.  Falk  Co.,  147  Wis. 
327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489,  3  N.  C.  C.  A.  649;  De  Francesco 
v.  Piney  Min.  Co.,  W.  Va.,  86  S.  E.  77;  State  ex  rel.  Yaple  v.  Creamer,  85 
Ohio  St.,  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694,  1  N.  C.  C.  A.  30;  Greene 
v.  Caldwell,  170  Ky.  571,  186  S.  W.  648,  Anderson  v.  Carnegie  Steel  Co., 
255  Pa.  33,  99  Atl.  215;  Brost  v.  Whitall-Tatum  Co.,  89  N.  J.  L.  531  L. 
R.  A.  1917D,  71;  De  Constantine  v.  Piney  Mining  Co.,  76  W.  Va.  765; 
Thornton  v.  Duffy,  99  Ohio  120,  124  N.  E.  54,  4  W.  C.  L.  J.  548 ;  State1 
ex  rel.  Amerland  v.  Hagan,  —  N.  D.  — ,  (1919)  175  N.  W.  372,  5  W.  C. 
L.  J.  446;  Superior  &  Pittsburg  Copper  Co.  v.  Davidovich,  19  Ariz.  402, 
171  Pac.  127,  16  N.  C.  C.  A.  801;  Shade  v.  Ash  Grove  Lime  and  Portland 
Cement  Co.,  92  Kan.  146, 139  Pac.  1193,  5  N.  C.  C.  A.  763;  State  v.  Claus- 
en, 65  Wash.  156,  3  N.  C.  C.  A.  599,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.) 
466;  Stoll  v.  Pac.  Steamship  Co.,  205  Fed.  169,  3  N.  C.  C.  A.  606;  State  v. 
Mountain  Timber  Co.,  75  Wash.  581,  4  N.  C.  C.  A.  811,  135  Pac.  645; 
Cunningham  v.  Northwestern  Imp.  Co.,  44  Mont.  "80,  119  Pac.  554;  1  N. 
C.  C.  A.  720;  Mondou  v.  N.  Y.  N.  H.  &  H.  R.  Co.,  223  U.  S.  1.  1  N.  C. 
C.  A.  875,  32  Sup.  Ct.  169,  56  L.  E.  327,  38  L.  R.  A.  (N.  S.)  44;  Scott  v. 
Nashville  Bridge  Co.,  —  Term.  — ,  (1920),  223  S.  W.  844,  6  W.  C.  L.  J. 
580;  Eassig  v.  State,  —  Ohio  — ,  116  N.  E.  104,  B  1  W.  C.  L.  J.  1458; 
State  ex  rel.  Turner  v.  Fidelity  Guaranty  Co.,  -  -  Ohio  — ,  117  N.  E . 
232;  Adams  v.  Iten  Biscuit  Co.,  —  Okla.  — ,  162  Pac.  938  B  1  W.  C. 
L.  J.  1480. 
70 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §13 

Constitution,  and  the  Legislature  may  modify  them  or  abolish 
them  entirely,  if  it  sees  n't  to  do  so."35  Nor  does  the  abrogation 
of  the  common  law  defenses  in  the  opinion  of  the  U.  S.  Supreme 
Court,  violate  the  "due  process  of  law"  amendment.  In  Mondou 
v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  223  U.  S.  1,  on  page  50,  32  Sup. 
Ct.  169,  on  page  175,  Mr.  Justice  Van  Devanter,  speaking  for  the 
court,  said:  "Of  the  objections  to  these  changes,  it  is  enough  to 
observe:  First,  'A  person  has  no  property,  no  vested  interest,  in 
any  rule  of  the  common  law.  That  is  only  one  of  the  forms  o£ 
municipal  law,  and  is  no  more  sacred  than  any  other.  Rights  of 
property,  which  have  been  created  by  the  common  law  cannot  be 
taken  without  due  process,  but  the  law  itself,  as  a  rule  of  conduct, 
nuiy  be  changed  at  the  will  *  *  of  the  legislature,  unless 
prevented  by  constitutional  limitations.  Indeed  the  great  office 
of  statutes  is  to  remedy  defects  in  the  common  law,  as  they  are 
developed  and  to  adapt  it  to  the  changes  of  time  and  circum- 
stances.' '  It  has  also  been  held  that  state  legislatures  "cannot 
be^  deemed  guilty  of  arbitrary  classifications  in  making  one  rule 
for  larger  and  another  for  small  establishments,  as  to  these  de- 
fenses." In  other  words  the  fact  that  employers  of  more  than 
five  employees  are  deprived  of  their  common  law  defenses,  if  they 
reject  the  act,  and  those  having  less  than  five  employees  are  not 
so  penalized,86  which  is  also  true  of  employers  of  casual  em- 

35.  Deibeikis  v.  Link  Belt  Co.,  261,  111.  454,    104  N.  E.  211,    5  N.  C.  C. 
A.  401;    Bell  v.  Toluca  Coal  Co.,  272  111.  576;    112  N.  E.  311;    Wheeler  v. 
Contoocook  Mills  Corp.,  77  N.  H.  551,  94  Atl.  265;    Sadowski  v.  Thomas 
Furnace  Co.,   157  Wis.  443,  146  N.  W.  770;     Strem  v.  Postal  Telegraph 
Cable  Co.,  271  111.  514,  111  N.  E.  555;    Dooley  v.  Sullivan,  218  Mass.  597, 
106  N.  E.  604;    Pope  v.  Hay  wood  Bros.  &  W.  Co.,  221  Mass.  143,  108  N.  E. 
1059;    Cavanaugh  v.  Morton  Salt  Co.,  152  Wis.  375;    Puza  v.  C.  Hennecke 
Co.,  158  Wis.  482,    149  N.  W.  223;    Boody  v.  K.  &  C.  Mfg.  Co.,  77  N.  H.  208, 
90  Atl.   859;    Arizona  Copper  Co.   Ltd.  v.  Hammer  —  U.  S.    Sup.  Ct.  - 
(1919)   4  W.  C.  L.  J.  321;   Crooks  v.  Tazewell  Coal  Co.,  —  111.    — ,  105  N. 
E.  132,  5  N.  C.  C.  A.  410;   State  ex  rel.  Yaple  v.  Cramer,  85  Ohio  St.  349, 
1  N.   C.  C.  A.  30;   Sharp  v.  Sharp,  213    111.    236;    People  v.    Binns,    191 
111.  68;  City  of  Chicago  v.  Sturgie,  222   U.   S.  313. 

36.  Hodges  v.  Swastika  Oil  Co.,  -    -  Tex.  Civ.  App.  -,    185  S.  W. 

369.     Defenses    available    as    against    casual    employees.      Thompson    v. 
Twiss,  90  Conn.  444,  97  Atl.  328;     Fidelity  &  Casualty  Co.  of  N.  Y.  v. 
Llewelyn  Iron  Works, Cal.  App. ,  184  Pac.  402,  4  W.  C.  L.  J.  694. 

71 


§13  WORKMEN'S  COMPENSATION  LAWS. 

ployees,37  and  certain  other  excepted  employments,38  does  nofc 
make  this  provision  of  the  various  compensation  acts  unconstitu- 
tional.39 Neither  do  the  different  modes  by  which  employer  and 
employee  may  indicate  their  election  constitute  an  unjust  discrimi- 
nation against  either.40 

It  is  held  in  New  Jersey  that  the  doctrine  of  assumption  of  such 
risks  as  are  virtually  incident  to  the  employment  itself,  cannot  be 
attributed  to  a  minor  employed  in  violation  of  the  law.41  It  has 
been  held  by  the  Supreme  Judicial  Court  of  Massachusetts  that  an 
employer  who  had  rejected  the  compensation  act  may  defend  a 
case  on  the  theory  of  contractual  assumption  if  risk,  which  is 
necessarily  incident  to  the  employment  itself,  even  though  such 
employment  may  be  dangerous.42  This  risk,  it  distinguishes  from 
the  assumption  of  risk  that  grows  out  of  the  negligence  of  the 
employer  in  reference  to  some  matter  outside  the  risks  assumed 
under  the  employee's  contract  of  employment,  such  as  the  failure 

37.  American  Steel  Foundries  v.  Ind.  Board,  284  111.  99,  119  N.  E.  902 
2  W.  C.  L.  J.  463;    Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328. 

38.  Miller  v.  United  Fuel  Gas  Co.,  -    -  W.  Va.  ,  (1921),  106  S.  B. 

419;  Page  v.  New   York  Realty  Co.,  —  Mont.  — ,    (1921),   196    Pac.  871. 

39.  Jeffery  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  59  Law  Ed.  364,  35  Sup. 
Ct.  Rep.  167,  7  N.  C.  C.  A.  570,  209  Mass.  607;    96  N.  E.  308,  1  N.  C.  C.  A. 
557;    Marshall  Field  &  Co.  v.  Indus.  Comm.  of  111.,  285  111.  333,  120  N.  E. 
773,  3  W.  C.  L.  J.  105;  Memphis  Cotton  Oil  Co.  v.  Tolbert,  -    -  Tex.  Civ. 
App.  ,  171  S.  W.  309,  7  N.  C.  C.  A.  547. 

40.  Shea  v.  North  Butte  Mining  Co.,  55  Mont.  522    (1919),  179,  Pac. 
499,  3  W.  C.  L.  J.  768. 

41.  Lesko  v.  Liondale  Bleach,  Dye  and  Print  Works,  -    -  N.  J. , 

107   Atl.  275,   4  W.    C.  L.  J.  525. 

42.  Ashton  v.  Boston  &  Maine  R.  R.  Co.,   222   Mass.   65;     109  N.  E. 
820,    12  N.  C.  C.  A.,  837.    Discussed  and  criticised  in  Bay  State  Ry.  Co. 
v.   Rust,  3  W.   C.  L.   J.  1;    As   to  pleading  this  defense    see    Murch  v. 
Thomas  Wilson's  Sons  Co.,  168  Mass.  408;    Gleason  v.   Smith,  172  Mass. 
50;    Boston  etc.  Ry.  v.  Baker,  150  C.  C.  A.  158,  236  Fed.  896;    Al  W.  C. 
L.   J.  48;    Besnys   v.    Herman  Zohrlant  Leather  Co.,    157  Wis.  203,    147 
N.  W:  37,  5  N.  C.  C.  A.  282;     Bernabeo  v.  Kaulback,  226   Mass.   128,  115 
N.  E.  279,  17  N.  C.  C.  A.  521;    See,  also,  Acklin  Stamping  Co.  v.  Kutz, 
98  Ohio  St.  61,  120  N.  E.  229,  17  N.  C.  C.  A.  607;  Crosse  v.  Boston  M.  R. 
R.,  223  Mass.  144,  111  N.  E.  676,  17  N.  C.  C.  A.  522;    International  Cotton 
Mills  Co.  v.  Pernod,  244  Fed.  723  Al.  W.  C.  L.  J.,  51;    Louis  v.  Smith- 
McCormick  Const.  Co.,  -   -  W.  Va. ,  92  So.  249,  B  1,  W.  C.  L   J.  1637. 

72 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §13 

of  the  employer  to  furnish  the  employee  with  ordinarily  safe  and 
suitable  tools  and  appliances.  This  latter  form  of  assumption  of 
risk,  it  was  held,  could  not  be  set  up  by  the  employer  as  a  defense.48 
This  decision  was  affirmed  in  a  later  Massachusetts  case,  wherein 
the  court  stated  that,  while  the  Act  takes  away  some  of  the  de- 
fenses from  an  employer,  who  has  rejected  it,  it  does  not  transform 
conduct  which  was  theretofore  lawful  on  the  part  of  the  employer 
into  negligence.44  A  like  ruling  has  been  made  in  West  Virginia.4" 
Nor  is  the  employee  entitled  to  recover  from  an  employer  who 
has  rejected  the  act  in  the  absence  of  the  latter 's  negligence,4"  and 
the  burden  of  proving.it  is  on  the  employee.47 

43.  Zinn  v.  Cabot,  W.  Va.  ,   (1921),  106  S.  E.  427;    Puza  v. 

C.  Hennecke  Co.,   158  Wis.  482,   149  N.  W.   223;    Bay  State    St.   R.  Co. 
v.  Rust   253   Fed.  43,  3  W.  C.  L.  J.  3;    Kieler  v.  Fred  Miller  Brewing  Co., 

-  Wis. ,  161  N.  W.  739,  B  1.  W.  C.  L.  J.  1683. 

44.  Walsh  v.  Turner  Center  Dairying  Ass'n,  223  Mass.  386,  111  N.  E. 
889;     Mammoth   v.  Worcester  Consol.   St.   Ry.  Co.,   228   Mass.   282,   117 
N.  E.  336,  1  W.  C.  L.  J.  83.     See  Contra,  Mitchell  v.  Phillips  Min.  Co. 
(Inc.)  165  N.  W.  108,  1  W.  C.  L.  J.  190;    Pope  v.  Hey  wood  Bros.  &  Wake- 
field  Co.,    221  Mass.    143,  108    N.  E.   1058,    17  N.   C.   C.  A.    513;    West 

Kentucky  Coal  Co.  v.   Smithers,  -     -  Ky.   App. ,  211   S.  W.  580,   4 

W.   C.  L.   J.  198. 

45.  Louis   v.    Smith-McCormick    Const.   Co.,    80   W.   V.    159,    92    S   E. 
249;     Antonio    DeFrancesco    v.    Piney    Mining   Co.,    76    W.    Va.    756,    86 
S.   E.   777. 

46.  Gerthung  v.   Stambough-Thompson  Co.,  1  Ohio  App.  176;    Hunt- 
er v.   Colfax   Corsol.   Coal  Co.,   175    la.   275,   154   N.   W.   1037  --  Am- 
ended 157    N.  W.     145,  11    N.  C.     C.    A.    886;    Ann.    Cas.  1917E     803; 
Linde-Bauer  v.  Weiner,  94  Misc.  Rep.  612,  159  N.  Y.  S.  987;     Watts  Ohio 
Valley  E.  R.  Co.,  78  W.  Va.  144,  88  S.  E.  659;    Louis  v.  Smith-McCormick 
Const.  Co.   (W.  Va.)    92   S.  E.' 249;   Walsh  v.  Turner  Center   Dairying 
Ass'n,  223  Mass.  386,   111  N.  E.  889;    Strom  v.  Postal  Tel.  Cable  Co., 
200   Dl.  App.  431;     Salus   v.  Great    Northern  R.  Co.,  157  Wis.    546,  147 
N.  W.  1070;    Price  v.  Cloverleaf  Mining  Co.,  188  111.  App.  27,  17  N.  C.  C. 
A.  519;     Spivok  v.    Indep.    Sash  and    Door  Co.,  173  Cal.  438,    160  Pac. 
565,  17  N.  C.  C.  A.  519;    Pope  v.  Hey  wood  Bros.   &  Wakefleld   Co.,  221 
Mass.  143,  108  N.  E.  1058,  17  N.  C.  C.  A.  521;    Lydman  v.  De  Haas,  185 

Mich.  128,  151  N.  W.  718,  8  N.  C.  C.  A.  649;    Wilkin  v.  Koppers  Co.,  

W.  Va. ,  (1919),  100  S.  E.  300,  4  W.  C.  L.  J.  755;    Stornelll  v.  Duluth 

S.   S.  &  Ry.  Co.,  Mich.  ,   160   N.   W.,   415;     A   1   W.  C.   L.  J. 

1023;    Miller  v.  United  Fuel  Gas  Co.,  -    -  W.  Va. ,  (1921),  106  S.  E. 

419—;    Zinn  v.  Cabot,  -   -  W.  Va. ,  (1921),  106  S.  E.  427. 

47.  Stornelli  v.  Duluth,  etc.  R.  Co.,  193  Mich.  674,  160  N.  W.  415;    See 

73 


§13  WORKMEN'S  COMPENSATION  LAWS. 

Though  it  is  held  in  other  jurisdictions  that  there  is  a  presump- 
tion of  negligence  on  the  part  of  the  employer  and  the  burden 
of  rebutting  this  presumption  rests  upon  him.48  When  the  em- 
ployee rejects  the  act,  he  is  not  entitled  to  recover  when  the  in- 
jury is  due  to  his  own  negligence,49  but  when  he  does  recover  he 
is  not  limited  to  the  rate  of  compensation  fixed  by  the  act,50 
though  he  is  so  limited  in  some  states.51 

In  construing  the  Louisiana  Act  the  Supreme  Court  of  that 
state  said:  "Section  28  of  Act  No.  20  of  1914,  which  reads,  'That 
no  compensation  shall  be  allowed  for  an  injury  caused  *  *  * 
(3)  by  the  injured  employee's  deliberate  failure  to  use  an  adequate 
guard  or  protection  against  accident,  provided  for  him,'  finds  no 
application  in  a  case  where  no  guard  or  protection  has  been  pro- 
vided against  a  danger,  the  assumption  of  the  risk  of  which  has 
caused  the  accident,  and  where  such  risk  has  been  assumed,  not 
deliberately,  but  under  conditions  which  rendered  it  necessary 
for  the  employee  to  decide  instanter  as  between  two  courses,  either 
of  which,  so  far  as  he  was  informed,  he  was  free  to  choose,  the 
more  efficiently,  as  he  conceived  to  perform  his  duty  to  his  em- 
ployer. ' ' 52 

Hunter  v.  Colfax  Consol.  Coal  Co.,  175  la.  245,  154  N.  W.  1037  (placing 
burden  of  proof  on  employer) :  Wendzinski  v.  Madison  Coal  Corp.  282 
111.  32,  118  N.  E.  435,  17  N.  C.  C.  A.  517;  Price  v.  Cloverleaf  Coal  Mining 
Co.,  188  111.  App.  27,  17  N.  C.  C.  A.  526;  Smith  v.  Stover  Mfg.  Co.,  205 
111.  App.  169,  17  N.  C.  C.  A.  526;  Yeancy  v.  Taylor  Coal  Co.,  199  111. 

App.  14,  17  N.  C.  C.  A.  526;    Thome  v.  F.  C.  Johnson  Co.  -    -  Me.  , 

111  Atl.  410,  1920,  7  W.  C.  L.  J.  684. 

48.  Mitchell  v.   Phillips  Mining  Co.    181  Iowa    600,  165  N.  W.    108,  17 
N.   C.   C.  A.  529;    Mitchell  v.   Des  Moines  Coal  Co.,   182  Iowa   1072,  165 
N.  W.  113,  17  N.   C.  C.  A.  531;    Gay  v.  Hocking  Coal  Co.  184  Iowa   949, 
169  N.  W.  360.  17  N.  C.   C.  A.  531;    O'Brien  v.  Las  Vegas  &  T.   R.  Co., 
155  C.  C.  A.  438,  242  Fed.  850,  17  N.  C.  C.  A.  532. 

49.  Watts  v.  Ohio  Valley  Elect.  R.  Co..   78  W.  Va.  144,   88  S.   E.  659. 

50.  Dick  v.   Knoperbium  (App.  Div  ).    1T57  N.   Y.  S.  754. 

51.  Mahowald  v.  Thompson-Starrett  Co.,  134  Minn.  113,  158  N.  W.  913, 
But  see  Hode  v.  Simmons,  132  Minn.  344,  157  N.  W.  506. 

52.  Farris  v.  Louisiana  Long  Leaf  Lumber  Co.,  La.  ,   (1920). 

86    So.  670,  7    W.  C.   L.  J.  292. 


74 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OP  ACTS.  §14 

§  14.  Election  by  Minors  and  Minors  Generally. — Section  7  of 
the  Missouri  Act  contains  the  following  typical  provision:  "The 
word  employee  shall  also  include  all  minor  employees,  and  all 
such  minor  employees  are  hereby  made  of  full  age  for  all  pur- 
poses under,  in  connection  with  or  arising  out  of  this  act."  By 
this  wording  the  legislature  has  apparently  expressed  the  inten- 
tion to  abolish  the  distinction  between  minors  and  persons  of  full 
age,  so  far  as  the  Compensation  Act  is  concerned,  whether  it  be 
as  to  matters  of  election  or  rejection  of  the  act  or  settlements  un- 
der its  provisions.  The  legislature  has  the  power  for  this  purpose 
to  declare  minors  of  full  age.58 

"The  appellants  also  contend  that  because  Fuller  was  a  minor 
when  the  accident  occurred  he  was  not  bound  by  the  provisions 
of  the  law  making  the  statute  applicable  to  employes  who  filed 
no  notice  of  an  election  to  the  contrary.  Kan.  Gen.  Stat.  1915, 
Sec.  5939;  Laws  1917,  c.  226  Section  24.  The  argument  is  that 
the  matter  is  contractual  and  that  a  minor  is  not  bound  by  his 
contracts.  The  Compensation  Act  by  various  references  to  minor 
workmen  fairly  shows  an  intention  to  bring  them  within  its  pro- 
visions. It  is  competent  for  the  Legislature  to  place  upon  minors 
the  obligation  of  an  affirmative  election  not  to  come  within  the 
Compensation  Act  in  order  not  to  be  subject  to  its  provisions 
(Young  v.  Sterling  Leather  Works,  91  N.  J.  L.  289,  102  Atl.  395), 
and  this  it  appears  to  have  done."54 

For  the  purpose  of  electing  the  acts,  a  number  of  states  mak<> 
minor  employees,  of  legal  working  age,  sui  juris.55  Other  acts 
require  the  employer  to  deal  with  the  minor  and  the  latter  with 
the  employer,  through  the  parents  or  guardian.  "The  act  pro- 
vides for  no  suit  by  a  parent  for  compensation  per  quod ;  and  we 
held  at  the  last  term  that  the  parent  could  not  recover  at  commcn 

53.  Dickens  v.  Carr.  84   Mo.  658;    Herkey  v.  Agar  Mfg.  Co.,   90  Misc. 
457,  153  N.  Y.  Supp.  369;  Green  v.  Caldwell,  170  Ky.  571,  180  S.  W.  648. 

54.  Chicago  R.  R.  &    P.  Ry.  Co.  v.   Fuller,   105  Kan.  608,    (1919),  186 

Pac.  127;    Scott  v.  Nashville  Bridge  Co.,  -     -  Tenn. ,   (1920),  223 

S.  W.  844,    6  W.    C.  L.    J.  580. 

55.  California,     Colorado,    Illinois,     Maryland.    Michigan,    Minnesota, 
Nebraska,  Kentucky,    Ohio,   Oregon,   Rhode  Island,   Washington.     The 
Alabama  Act  specifically   states  that  it  applies  to   minors  even   though 
employed  contrary  to  laws  regulating  minors. 

75 


§14  WORKMEN'S  COMPENSATION  LAWS. 

law.  Buonfiglio  v.  R.  Neuman  &  Co.,  107  Atl.  285.  The  result 
is  that  the  parent  is  barred  entirely  of  recovery  per  quod  unless 
he  or  she  takes  the  statutory  method  of  rejecting  the  elective 
compensation  scheme,  or  receives  notice  from  the  employer,  as 
in  Brost  v.  Whitall-Tatum  Co.,  89  N.  J.  Law,  531,  99  Atl.  315, 
L.  R.  A.  1917  D,  71,  a  suit  at  common  Law  by  the  employee. 
Whether  or  not  the  contract  of  employment  is  made,  or  contem- 
plated by  the  statute  as  made  by  the  infant  herself,  or  as  agent 
for  the  parent,  or  directly  by  the  parent,  is  quite  immaterial.  If 
there  is  a  valid  employment  of  an  infant  over  14  years  (see 
Hetzel  v.  Wesson  Piston  Ring  Co.,  89  N.  J.  Law,  201,  98  Atl. 
306,  L.  R.  A.  1917D,  75),  and  no  agreement  or  notice  to  make 
section  2  inoperative,  then  in  case  of  injury  the  whole  theory  of 
the  act  is  that  the  compensation  shall  be  paid  to,  and  sued  for  by, 
the  employee,  or  dependents,  or  beneficiaries.  These  are  the  words 
of  the  statute  itself.  Nowhere  therein  is  a  parent,  qua  parent, 
recognized  as  entitled  to  any  of  the  prescribed  compensation.  Such 
being  the  case,  the  alleged  injustice  of  confining  the  infant  em- 
ployee to  recovery  under  the  act  disappears. ' ' 56 

"The  right  of  an  infant  to  maintain  an  action  for  injuries 
received,  for  which  the  master  may  be  liable,  is  subject  to  statu- 
tory regulation,  and  this  statute  clearly  provides  that  any  em- 
ployee, which  includes  infants,  may  maintain  an  action  under 
section  2,  unless  notice  be  given  to  the  employer  by  the  parent 
or  guardian  that  any  right  of  action  that  may  arise,  based  upon 
injuries  suffered  in  that  service,  is  not  limited  to  the  compensation 
provided  in  the  statute. ' '  " 

The  New  Jersey  Act  is  presumed  to  apply  to  the  employment 
of  minors  unless  a  notice  of  the  election  to  reject  the  act  has 
been  given  to  the  parents  of  the  minor.58 

56.  Hartman   v.   Unexcelled   Mfg.   Co.,   93   N.    J.   L.   418,    (1919),   108 
Atl.    357,  5   W.  C.    L.  J.  422;      Buonfiglio  v.    Neumann    &  Co.  107  Atl. 
285,  4  W.  C.  L.  J.  521. 

57.  Hoey  v.    Superior    Laundry   Co.,    85   N.  J.    L.   119,    88    Atl.   823, 
15  N.  C.  C.  A.  721. 

158.    Troth   v.   Millville   Bottle   Works,   89    N.   J.   L.   219,   98   Atl.   43^ 
15  N.  C.  C.  A.  722,  Aff'g  86  N.  J.  L,  558,  9  N.  C.  C.  A.  855,  91  Atl.  1031; 
Brost  v.   Wbitall-Tatum    Co.,  89    N.  J.  L.    531,  L.    R.   A.  1917D,  71,  99 
Atl.  315,  15  N.  C.  C.  A.  723. 
76 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §14 

It  has  been  held  in  some  jurisdictions  that  the  act  does  not 
apply  «to  minors  employed  in  violation  of  the  law,  requiring  them 
to  be  of  the  legal  working  age  fixed  by  the  general  statutes  of  the 
state  for  the  reason  that  they  cannot  then  be  considered  legally 
employees.59  And  the  payments  of  premiums  into  the  state  Com- 
pensation fund  is  no  protection  against  such  unlawful  employ- 
ment.80 

It  has  also  been  held  by  one  of  the  New  York  appellate  court 
divisions  that  the  Workmen's  Compensation  Act  is  not  a  bar  to 
a  common-law  action  for  damages  by  an  infant  employed  in  vio- 
lation of  the  New  York  Penal  Law,  section  1275,  and  the  Labor 
Law  section  81,  requiring  machinery  to  be  properly  guarded.'1 

So  it  is  held  under  the  Iowa  Act  that  the  illegal  employment 
of  a  girl  under  14  years  of  age  will  not  limit  the  employer's  lia- 
bility to  compensation  fixed  by  the  compensation  act  to  which  the 

69.  Pettee  v.  Noyes,  133  Minn.  109,  157  N.  W.  995;  Westerlund  v. 
Kettle  River  Co.,  137  Minn.  24,  162  N.  W.  684;  Stetz  v.  Mayer  Boot 
&  Shoe  Co.,  163  Wis.  151.  156  N.  W.  971,  15  N.  C.  C.  A.  730;  Hetzel  v. 
Wasson  Piston  Ring  Co.,  89  N.  J.  L.  201,  98  Atl.  306,  L.  R.  A.  1917D, 
75;  Moll  v.  Industrial  Comm.  et  al.  (111.)  (1919),  123  N.  E.  562, 
4  W.  C.  L.  J.  369;  Messmer  v.  Industrial  Board,  282  111.  562,  118  N.  E. 
993,  1  W.  C.  L.  J.  956;  Roszek  v.  Bauerle  &  Stark  Co.,  282  111.  557, 
118  N.  E.  991,  1  W.  C.  L.  J.  952;  Lostuttur  v.  Brown  Shoe  Co.,  203  111. 
App.  518;  Kruczkowski  v.  Polonia  Pub.  Co.  (Mich.),  168  N.  W.  932,  2 
W.  C.  L.  J.  913;  Acklin  Stamping  Co.  v.  Kutz  (Ohio)  120  N.  E.  229,  2 
W.  C.  L.  J.  833;  Hillstead  v.  Ind.  Ins.  Comm.,  80  Wash.  426,  141  Pac. 
913,  Ann.  Gas.  1916B,  789;  Secklich  v.  Harris  Emery  Co.,  --  la.  — ,  169 
N.  W.  325,  3  W.  C.  L.  J.  126;  Adkins  v.  Hope;  Waterman  Lumber  Co. 
v.  Beatty,  —  Tex.  Civ.  App.  — ,  204  S.  W.  448,  2  W.  C.  L.  J.  706;  New 

Albany  Box  &  Basket  Co.  v.  Davidson, Ind. ,  (1920),  125  N.  E. 

904,  5   W.  C.  L.  J.  509;    Lesko  v.  Liondale  Bleach  Dye   &  Print  Works, 
93  N.  J.  L.  4,    (1919),    107  Atl.  275,  4  W.   C.  L.  J.  525;   Freys   Guardian 

v.  Gamble  Bros.  Ky.  App.  -    -  (1920)  221  S.  W.  870,  6  W.  C.  L.  J. 

171;    Lincoln  v.  National   Tube  Co., Pa. ,  (1920),    112  Atl.  73; 

Mangus  v.  Proctor  Eagle  Coal  Co.,  W.  Va. ,    (1920),  105  S.   E. 

903;  Galloway  v.  Lbrmeii's   Indem.   Exchange,   Tex.  Civ.  App. , 

(1921),  221  S.  W.   536. 

60.  Morrison  v.  Smith  Pocohontas  Coal  Co.. W.  Va. ,  (1921). 

106  S.  E.  448. 

61.  Wolff  v.  Pulton   Bag  &  Cotton   Mills,  -     -  N.  Y.  App. ,   173 

N.  Y.  Supp.  75,  3  W.  C.  L.  J.  354. 

77 


§14  WORKMEN'S  COMPENSATION  LAWS. 

child  was  incapable  of  giving  consent  and  the  misstatement  of 
the  girl  as  to  her  age  is  immaterial  since  the  prohibition  against 
such  employment  is  absolute.62 

It  has  also  been  held  that  illegality  of  the  employment  is  no 
defense  to  a  claim  for  compensation  under  the  act,  even  though 
the  employee  be  not  of  legal  working  age  or  if  he  be  of  that  age 
but  engaged  in  employment  prohibited  to  minors.63  "Section 
2447,  Rem.  Code,  hereinbefore  quoted,  makes  it  a  misdemeanor 
for  an  employer  to  employ  'any  male  child  under  the  age  of 
fourteen  years  or  any  female  child  under  the  age  of  sixteen 
years  at  any  labor'  in  any  factory  without  the  written  permit 
of  a  judge  of  a  superior  court  of  the  county  wherein  such  child 
may  live.  This  statute  does  not  make  it  unlawful  for  a  child 
under  the  prohibited  age  to  work  and  imposes  no  penalty  upon 
the  child  when  it  does  work.  It  follows  that  the  child  neither 
gains  nor  loses  any  rights  by  such  employment,  even  though  the 
employer  may  be  penalized.  This  section  plainly  recognizes  that 
a  child  less  than  the  maximum  age  for  the  employment  of  a  minor 
is  a  workman  within  the  meaning  of  that  act.  It  follows  that 
whether  the  child  is  employed  either  lawfully  or  unlawfully  such 
child  is  entitled  to  all  the  privileges  of  the  Workingmen's  Com- 
pensation Act  and  must  seek  its  remedies  under  the  terms  of  that 
act."64 

The  courts  of  Wisconsin  make  a  distinction  as  to  these  two 
classes  of  violation  of  the  general  statute  laws  in  view  of  the  pro- 

62.  Secklich  v.   Harris  Emery  Co.,  -     -  Iowa ,  169   N.   W.  325,  3 

W.  C.  L.  J.  126;    same  parties,  160  N.  W.  327,  17  N.  C.  C.  A.  611.     In 
re  Stoner Ind. ,  (1921),  128  N.  E.  938,  7  W.  C.  L.  J.  198;    Mary- 
Land  Gas.  Co.  v.  Indus.  Comm.,  -   -  Cal. ,  178  Pac.   858,  3  W.  C.  L. 

J.  563. 

63.  Uhl   v.    Hartwood    Club,    177    App.    Div.    41,     163     N.    Y.    S.    764, 
affirmed  221  N.  Y.  588,  116  N.   E.   1000;     Stanton   v.   Masterson,   2   Cal. 
I.  A.   C.   Dec.  707;     See  Waterman  Lumber    Co.,    v.  Beatty   (Civ.  App.) 
204    S.  W.  448,    2  W.  C.  L.    J.    706;    Robilotto  v.  Bartholdi  Realty    Co., 
171  N.  Y.  Supp.  328,  3  W.  C.  L.  J.  59;    Ide  v.  Fuel  &  Timmins,  179  N. 
Y.  App.  Div.  567,  15  N.  C.  C.  A.  731,   166  N.  Y.  S.   858;    But  see   to  the 
contrary  Wolff  v.  Fulton  Bag  &  Cotton   Mills   185  N.    Y.  App.  Div.  436, 
173  N.  Y.  375,  17  N.  C.  C.  A.  618,  3  W.  C.  L.  J.  354. 

64.  Rasi   v.  Howard   Mfg.  Co.,  —Wash.— ,(1920),  187    Pac.  327,    5  W. 
C.  L.  J.  632. 

78 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §14 

vision  in  its  compensation  act  making  it  applicable  to  minors, 
"who  are  legally  permitted  to  work  under  the  laws  of  this  State," 
holding  that  minor  employees  under  the  legal  age  are  not  em- 
ployees within  the  meaning  of  the  act,  but  that  minor  employees 
in  prohibited  employments  are  employees  within  the  meaning  of 
the  act.05  Though  in  1917  the  Wisconsin  Act  was  amended  to 
give  the  minor  treble  compensation  in  either  case. 

There  must  be  proof  of  contractual  relation  and  no  rejection 
before  a  minor  employee  can  be  regarded  as  being  under  the  Com- 
pensation  Act,08  though  it  has  been  held  to  be  immaterial  that  the 
contract  is  voidable,67  or  that  the  employee  misrepresented  his 
age.88 

Where  an  employer  has  a  certificate  of  age  issued  from  a  school 
committee,  and  complying  in  all  respects  with  the  statutory  pro- 
visions in  this  regard,  he  is  not  obliged  to  investigate  the  accuracy 
of  the  certificate  and  is  entitled  to  rely  upon  it  as  rendering  the 
employment  of  the  child  legal,  and  the  child  is  sui  juris  as  an 
employee.69 

It  has  been  held  that  a  minor's  misrepresentation  as  to  his  age 
may  work  to  his  detriment.  As  in  a  common-law  action  for 

65.  Lutz  v.  Wilmanns  Bros.  Co.,  166  Wis.   210,  164  N.  W.   1002,   15  N. 
C.  C.  A.  731;    Foth  v.   Macomber  &  Wbyte  Rope   Co.,  161  Wis.   549,  154 
N.  W.  369;     Milwaukee  v.  Miller,  154  Wis.   652,  144   N.  W.  188,  L.  R.  A. 
1916A,  1    Ann.  Cas.  1915B,  847;     Menominee    Bay    Shore  Lumber    Co.v. 
Ind.  Comm.,  162,  Wis.  151,  156  N.  W.  151;     Rhodes  v.  J.   B.  B.  Coal  Co. 
79  W.  Va.  71,  90   S.  E.  796. 

66.  Hillestad  v.  Industrial  Ins.  Comm.,  80  Wash.  426,   141  Pac.  913, 
Ann.   Cas.    1916B,  789,  rejection,  Brost  v.    Whitall-Tatum    Co.,     99   Atl. 
315;  Adkins  v.   Hope  Engineering  Co.,   81  W.  Va.    449,  94  S.  E.   506,  15 
N.  C.  C.  A.  724. 

67.  Hoey  v.  Superior  Laundry  Co.,  85  N.  J.  L.  — ,  88  Atl.  823.  1919; 
Young  v.  Sterling  Leather  Works,  91  N.  J.  L.    289. 

68.  Havey  v.  Erie  R.  Co.,  87  N.  J.  L.  444,  88  N.  J.   L.   684;    Sturgis 
&  Burn  Mfg.  Co.  v.  Beauchamps,  34  Sup.  Ct.  Reporter  60  (Dec.  1,  1913); 
Secklich  v.  Harris-Emery  Co.,  184  la.  1025,  169  N.  W.  325,  3  W.  C.  L.  J. 
126;     But  see  Norfolk   &  W.   Ry.   Co.,   v.   Momlurant's   Admr.,   59   S.   E. 
1091;     107  Va.  515,  15  L.  R.  A.    (N.   S.)    443n;     Stetz  v.  Mayor  Boot  & 
Shoe  Co.,  163  Wis.    151,   156   N.  W.  971,  15.N.  C.   C.  A.    729. 

69.  Taglinete    v.  Sydney    Worsted   Co.,— R.    I.— .(1919)    105  Atl.    641, 
3  W.  C.  L.  J.  662.     Oregon  Act  amended  1921.  §  6627. 

79 


§14  WORKMEN'S  COMPENSATION  LAWS. 

damages  sustained  by  a  minor,  who  was  illegally  employed  the 
defense  of  contributory  negligence  is  open  to  the  employer  when 
he  can  show  by  a  preponderance  of  the  evidence  that  there  was 
fraud  or  misrepresentation  as  to  his  age  on  the  part  of  the  minor 
employee.70 

"Does  the  Act  in  question  comprehend  employees  over  14, 
though  under  21  years  of  age,  when  lawfully  employed  in  mines? 
Unless  invalid  we  answer  unhesitatingly  that  it  does  comprehend 
and  cover  infant  employees  lawfully  employed.  Certainly  they 
are  not  by  the  terms  of  the  statute  excluded  from  its  provisions. 
The  statute  was  enacted  for  the  benefit  both  of  employers  and 
employees.  To  say  that  the  act  does  not  cover  the  employment 
of  infants  would  be  to  deprive  them  of  very  material  benefits,  and 
of  the  compensation  fund  created  by  the  act.  If  brought  under 
the  act,  they  are  protected  against  their  contributory  negligence, 
the  negligence  of  fellow-servants,  and  the  defense  of  assumption 
of  risk,  and  the  burden  of  doubtful  and  expensive  litigation  re- 
quired before  the  statute  would  be  removed.  Disability  of  infancy 
being  created  by  statute  may  certainly  be  removed  by  statute.  A 
statute  which  makes  it  lawful  to  employ  an  infant  over  14  years 
of  age  in  a  coal  mine  should  certainly  receive  a  construction 
that  will  authorize  him  to  make  a  lawful  contract  of  employment, 
to  bind  himself  thereby,  and  to  participate  in  all  the  benefits 
which  would  accrue  to  him,  under  a  statute  made  for  the  protec- 
tion of  employees.71 

In  construing  the  Massachusetts  Act  as  it  relates  to  minors  the 
Supreme  Judicial  Court  of  Massachusetts  said: 

"The  definition  does  not  in  terms  exclude  minors,  but  on  the 
contrary  includes  'every  person  in  the  service  of  another  under 
any  contract  of  hire,'  with  the  exception  of  certain  persons  spe- 
cifically described.  Children  and  minors  are  expressly  recogniz- 
ed in  the  act — in  part,  2,  Sec.  7,  cl.  C,  as  amended  by  St.  1914,  c. 

70.  Acklin   Stamping  Co.   v.  Kutz,    78  Ohio  St.  61,   120  N.  E.    229,    17 
N.  C.  C.  A.  607. 

71.  Rhodes  v.  J.  B.  B.  Coal  Co.,  79  W.  Va.  71,  90  S.  E.  796,  15  N.  C. 
C.  A.  720;    Radtke  Bros,  et  al.  v.  Indus.  Comm.,  —  Wis.  — ,  183  N.  W. 
168,   (1921). 

80 


ELECTION,  REJECTION  A  CONSTITUTIONALITY  OP  ACTS.  §14 

708,  Sec.  3.  Under  part  2,  Sec.  22,  as  amended  by  St.  1914,  C. 
708,  Sec.  8,  the  Industrial  Accident  Board  is  authorized  in  its 
discretion  to  provide  for  the  payment  of  a  lump  sum  to  a  minor 
who  has  received  permanently  disabling  injuries.  See  also  St. 
1915,  c.  236.  If  a  minor  is  not  within  the  terms  of  the  act  and 
therefore  not  bound  by  them,  it  would  follow  that  the  insurer 
would  be  relieved  from  making  payments  thereunder  to  a  minor 
employee  if  the  contract  of  hire  was  made  before  he  became  of 
full  age.  To  roach  such  a  conclusion  would  result  in  great  hard- 
ship. It  would  not  be  in  accord  with  the  language  of  the  act  or 
in  harmony  with  its  humanitarian  purposes  which  were  to  cure 
the  defects  of  previously  existing  remedies  and  to  provide  ade- 
quate and  just  protection  to  employees  against  injuries,  and  relief 
in  case  of  accidents. ' '  ™ 

Under  the  California  Act  "it  shall  be  conclusively  presumed 
that  such  employee  was  not  guilty  of  contributory  negligence  in 
any  case  where  the  violation  of  any  statute  enacted  for  the  safety 
of  employees  contributed  to  such  employee's  injury."  Thus, 
where  a  minor's  contract  of  employment  included  both  prohib- 
ited employment  as  well  as  legal  employment  and  he  was  killed 
while  performing  that  portion  of  his  labors  which  was  not  pro- 
hibited it  was  held  that  the  employer  was  not  precluded  from 
pleading  contribuory  negligence.78 

Under  the  Massachusetts  act  a  parent's  right  of  action  for  in- 
juries to  a  minor  child  is  not  affected,  although  the  child  has 
accepted  the  act  and  received  compensation  thereunder  for  his 
injuries.74 

It  has  also  been  held  that  the  fact  that  a  minor  was  legally 
employed,  but  afterwards  placed  at  forbidden  work  by  a  vice 
principal,  would  not  bar  him  from  his  common  law  rights.76 

72.  Gilbert  v.   Wire   Goods   Co.,   (1919)  233   Mass.  570,  124  N.  E.  479, 
4  W.   C.    L.    J.  714. 

73.  Wiliams  v.  Southern  Pac.  R.  Co.,   173   Cal.    525.    160  Pac.  660,  15 
N.  C.  C.  A.  733. 

74.  King  v.  Viscoloid  Co.,  219  Mass.  420,  106  N.  E.  988,  7  N.  C.  C.   A. 
254. 

75.  Gutmanu  v.  Anderson.  142  Minn.  141,  (1919),  171  N.  W.  303,  3  W. 
C.  L.  J.  765;    Kruczkowski  v.  Polonia  Pub.  Co.,  203  Mich.  213,  168  N.  W. 
932,  17  N.  C.  C.  A.  611. 

81 
W.  C.— « 


§14  WORKMEN'S  COMPENSATION  LAWS. 

In  a  California  case  the  court  said:  "If  the  employee  was  a 
minor  under  the  terms  of  the  Workmen's  Compensation  Act,  at 
the  time  of  the  first  application  and  hearing,  since  she  was  not 
represented  therein  by  a  guardian,  she  had  the  right,  incident 
to  minority,  of  disaffirming  the  award  of  the  commission  rendered 
in  such  proceeding  within  a  reasonable  time  after  reaching  the 
age  of  majority."  76 

Under  the  Kentucky  statute  the  failure  of  an  employer  to 
furnish  safety  devices  required  by  statute  does  not  entitle  a 
guardian  or  the  injured  minor  employee  to  sue  at  common  law, 
for  damages  for  this  election  applies  only  where  the  minor  is 
employed  in  willful  and  known  violation  of  law,  and  such  failure 
does  not  constitute  employment  in  violation  of  law.77 

"Where  a  minor  employed  in  violation  of  the  law  involuntarily 
appears  before  the  Kentucky  Compensation  Board  he  is  not 
thereby  estopped  from  the  prosecution  of  his  common  law  action 
for  damages.18 

Under  the  Indiana  Act  when  an  employer  fails  to  secure  an 
affidavit  of  age,  as  in  the  case  of  a  'young  person,'  that  is  a  per- 
son between  the  ages  of  14  and  18  years,  such  person  is  held  not 
lawfully  employel  and  therefore  not  an  employee  entitled  to  the 
benefits  of  the  act.79 

In  a  California  case  where  a  minor  was  employed  without  an 
age  and  schooling  certificate  required  by  the  child  labor  law,  the 
court  said :  ' '  On  the  whole,  therefore,  the  contract  of  employment, 
in  violation  of  the  child  labor  law  was  illegal  and  not  included 
in  the  policy  of  insurance  (Mt.  Vernon  Co.  v.  Frankfort  Co.,  Ill 
Md.  561,  75  Atl.  105,  134  Am.  St.  Rep.  636),  and,  there  being 
no  waiver  or  estoppel,  the  petitioner  is  not  liable  under  the  policy 
for  the  accident  in  question. ' ' 80 

76.  Gounillou  v.  Indus.  A.  C.  of  Gal.,  —  Cal.  — ,  193  Pac.  937. 

77.  Freys  Guardian  v.  Gamble  Bros.,  -    -  Ky.  App. ,   (1920),  221 

S.  W.  870,  6  W.  C.  L.  J.  171 

78.  Louisville  Woolen  Mills  v.  Kindgen,  —  Ky.  App.  — ,   231   S.  W. 
202. 

79.  In  re  Stoner, Ind.  App. ,  (1920),  128  N.  E.  938,  7  W.  C.  L. 

J.  198. 

80.  Maryland  Gas   Co.  v.  Indus.  Comm.,  Cal.  ,  178  Pac.  858, 

3  W.  C.  L.  J,  563 

82 


ELECTION,  REJECTION  &  CONSTITUTIONALITY  OF  ACTS.  §15 

A  minor  child  working  for  his  father  is  not  an  employee  with- 
in the  meaning  of  the  California  Act,  where  there  has  not  been 
an  actual  emancipation  of  the  child.*1 

§  15.  Election  to  reject  and  action  for  damages. — In  actions 
for  damages  at  common  law,  when  from  the  language  of  the  act, 
the  employer  is  presumed  to  come  under  it,  the  burden  is  on 
the  employee  to  allege  and  establish  the  employer's  rejection  of 
the  act  or  the  fact  which  prevents  ^he  application  of  the  Workmen's 
Compensation  Act  to  the  employee.82  As  for  example  under  some 
acts  the  employee  may  allege  and  prove  that  his  average  annual 
earnings  exceed  the  stated  amount  exempted  by  the  act,  under 
others  that  he  has  rejected  the  act,  that  his  employer  employs 
regularly  less  than  three  or  five  employees,  that  he  is  a  farm  hand, 
casual  employee,  family  chauffeur,  domestic  servant,  outworker, 
official  of  a  political  subdivision,  or  that  his  employer  has  failed 
to  insure  his  risk,  as  required  by  the  Act,83  the  pleading  and 
proof  of  any  one  of  which  facts  would  entitle  the  employee  to 
sue  for  damages  at  common  law.8*  But  where  an  employer  is 

81.  Aetna  Life  Ins.  Co.  v.  Indus.  Ace.  Comm., Cal. ,  166  Pac. 

15,  A  1  W.  C.  L.  J.  111. 

82.  Reynolds  v.  Chicago  City  R.  R.  Co.,  287  111.  124,  (1919),  122  N.  E. 
371,  3  W.    C.   L.  J.   608;    Beveridge  v.    111.    Fuel    Co.,  283     111.   31,     119 
N.  E.  46,  17  N.  C.  C.  A.  463;    Barnes  v.  Illinois  Fuel  Co.,  283  111.  173,  119 
N.  E.  48,  17  N.  C.  C.  A.  476.   Palmieri  v.  Illinois  Third  Vein  Coal  Co., 
208  111.   App.   405,   17  N.  C.   C.  A.   476;     Synkus   v.   Big   Muddy  Coal   & 
Iron  Co.,  190  111.  App.  602;    See  31  N.  E.  46,    Barnes  v.  Beamboch  Piano 
Co.,  101  Misc.  Rep.  669,  167  N.  Y.  S.    933,  1  W.  C.  L.  J.   703;    Louis  v. 
Smith-McCormick  Const.  Co.,  80  W.  Va.  59,  92  S.  E.  249.   Contra,  Mitchell 
v.  Swan  wood  Coal  Co.,  (la.)  166  N.  W.  391,  1  W.  C.  L.  J.f  602;    Balen  v. 
Colfax  Consolidated  Coal  Co.,  183  la.  1198,  168  N.  W.  246,  17  N.  C.  C.  A. 
512.      See  also     Waterman     Lumber    Co.    v.  Beatty     (Tex.    Civ.    App.) 
204  S.    W.  448,  2  W.    C.  L.  J.    706;    Bishop    v.    Chicago    Rys.  Co.,    290 
111.  194,  (1919),  124  N.  E.  837;    5  W.  C.  L.  J.  175;    Baggs  v.  Standard 
Oil  Co.  of  N.  Y.,  180  N.  Y.  S.  560,  5  W.  C.  L.  J.  740;    Ruddy  v.  Morse  Dry 
Dock  &  Repair  Co.,  176  N.  Y.  731,  107  Misc.  109.  (1919),  4  W.  C.  L.  J.  448; 
Krisman  v.  Johnson  C.iy  &  Big  Muddy  Coal  &  Mining  Co.,  190  111.  App. 
612,  17  N.  C.  C.  A.  52Y;    Nilsen  v.  American  Bridge  Co.,  221  N.  Y.  12, 
116  N.  E.  383,  17  N.  C.  C.  A.  479. 

83.  Gayton  v.  Borsoisky, Mass. ,  119  N.  E.  831,  17  N.  C.  C.  A.  517. 

84.  Talge  Mahoguuy  Co.  v.  Burrows, Ind. ,  130  N.  E.  867. 

83 


§15  WORKMEN'S  COMPENSATION  LAWS. 

not  presumed  to  come  under  the  act  the  burden  of  proving  that 
he  has  assented  to  come  under  the  act  is  upon  the  employer.85 
Though  where  the  evidence  shows  that  the  employee  first  prosecuted 
a  claim  for  compensation  under  the  act  to  final  adjudication,  the 
question  of  whether  the  employer  had  notified  the  employee  of 
his  election  to  come  under  the  act  is  immaterial  in  an  action  at 
law  against  the  employer  by  the  employee.86 

It  has  also  been  held  in  some  jurisdictions  that  the  plaintiff 
employee  need  not  allege  the  employer's  rejection  of  the  Act 
in  his  petition  in  an  action  for  damages.87 

In  Illinois  under  its  Act  of  1911,  Sec.  3,  it  has  been  held  that 
the  employee  must  allege  and  prove  that  an  independent  violation 
of  the  factory  Act  was  by  the  defendant's  elective  officer  in  order 
that  the  employee  might  recover  damages  at  common  law. 

As  a  general  rule  it  is  not  necessary  for  an  employee  to  allege 
that  he  had  rejected  the  act,  if!  he  has  alleged  the  employer's 
rejection,  which  of  itself,  under  most  elective  acts  excludes  the 
employee  from  the  benefits  of  the  act.88  Should  the  employee 
plead  and  prove  that  he  had  rejected  the  act,  prior  to  the  acci- 
dental injury,  for  which  compensation  is  claimed  and  the  employer 
pleads  and  proves  that  he  has  accepted  the  act,  then  the  latter  may 
avail  himself  of  the  common-law  defenses.  The  employee 
must  also  allege  and  prove  negligence  of  the  employer,  his  or 
its  officers,  agents  or  employees,90  before  he  can  recover.91  But 

85.  Nadeau  v.  Caribou  Water,  Light  &  Power  Co.,  118  Me.  325,  (1919), 
108  Atl.  190,  5  W.  C.  L.  J.  238;  Basso  v.  John  T.  Clark  &  Son,  177  N.  Y. 
S.  484,  108  Misc.  78  (1919),  4  W.  C.  L.  J.  530;  Garvin  v.  "Western  Coop- 
erage Co.,  94  Oregon  487   (1919),  184  Pac.  Rep.  555,  4  W.  C.  L.  J.  738. 

86.  Texas  Refining  Co.  v.  Alexander, Tex.  Civ.  App.  -  -  202  S.  W. 

131,  17  N.  C.  C.  A.  471. 

87.  Nash  v.  Minneapolis  and  St.  Louis  Ry.  Co.,  141  Minn.  148,  169  N.  W. 
540,  3  W.  C.  L.  J.  157;   Salvuca  v.  Ryan  &  Reilly  Co.,  129  Md.  235,  98 
Atl.  675,  17  N.  C.  C.  A.    477 ;  Chamberlain  v.  Luckenheimer  Co.,  25  Ohio 
S.  &  C.  PI.  Dec.  368,  8  N.  C.  C.  A.  670;    Gorrell  v.  Battelle,  93  Kan.  370,  144 
Pac.  244,  7  N.  C.  C.  A., 48.  . 

88.  Favro  v.  Superior  Coal  Co.,  188  111.  App.  203;    Dietz  v.  Big  Muddy 
Coal  Co.,  263  111.  480,  5  N.  C.  C.  A.  419. 

90.  Watts  v.  Ohio  Elect.  R.  Co.,  78  W.  Va.  144,  83  S.  E.  659. 

91.  Spivok  v.  Independent  Sash  &  Door  Co.,  173  Cal.  438,  160  Pac.  565; 
84 


ELECTION,  REJECTION  ft  CONSTITUTIONALITY  OP  ACTS.  §15 

under  the  Iowa  Act,  section  2477-M,  Subdiv.  C(4),  Code  Supple- 
ment 1913,  negligence  on  the  part  of  the  employer  is  presumed 
if  it  is  shown  that  the  accident  arose  out  of  and  in  the  course  of 
the  employment,82  and  negligence  need  not  be  pleaded.98  This 
amounts  to  the  establishment  of  something  more  than  a  statutory 
res  ipsa  loquitur  doctrine,  the  constitutionality  of  which  appears 
doubtful  as  depriving  one  of  his  property  without  due  process  of 
law.  To  compare  it  with  criminal  law  it  is  in  the  nature  of  a 
presumption  of  guilt. 

Evidence  which  tends  only  to  establish  assumption  of  risk  or 
contributory  negligence  has  no  place  or  bearing  in  an  action 
for  damages  against  a  non  assenting  Iowa  employer  unless  it 
tends  to  show  willful  and  intentional  negligence  on  the  part  of 
the  employee.94 

In  an  action  for  damages,  at  common  law,  against  the  employer 
by  an  employee,  his  or  her  dependents,  heirs,  legal  representatives, 
or  next  of  kin  the  employer  may  as  a  general  rule  set  up  as  a 
defense,  the  fact  that  the  deceased  employee  was  covered  by  the 
actr95  or  that  he  has  made  a  claim  for  compensation  under  the 

Stornelli  v.  Duluth  S.  S.  &  A.  Ry.  Co.,  193  Mich.  674, 160  N.  Y.  415;  Price 
v.  Clover  Leaf  Coal  Mining  Co.,  188  111.  App.  27;  Salus  v.  Great  Northern 
R.  Co.,  157  Wis.  546,  147  N.  Y.  1070;  Henshaw  v.  Boston  etc.,  R.  Co.,  222 
Mass.  459,  111  N.  E.  172;  Walsh  v.  Turner  Center  Dairying  Ass'n,  223  Mass. 
386,  111  N.  E.  889;  Cross  v.  Boston  &  M.  R.  R.  Co.,  223  Mass.  144,  111  N.  E. 
676;  Lindenbauer  v.  Weiners,  94  Misc.  612,  159  Supp.  987;  West  Kentucky 
Coal.  Co.  v.  Smithers,  —  Ky.  App.  — ,  211  S.  W.  580,  4  W.  C.  L.  J.  198; 
Hunter  v.  Colfax  Cons.  Coal  Co.,  175  la.  245,  157  N.  W.  145,  L.  R.  A.  1917D, 
15n,  Ann.  Cas.  1917E,  803;  Watts  v.  Ohio  Elect.  R.  Co.,  78  W.  Va.  144, 
88  S.E.659;  Balen  v.  Colfax  Coal  Co.,  183  la.,  1198,  168  N.  W.  246,  2 
W.  C.  L.  J.  621.  Cannot  recover  if  accident  Is  due  to  servant's  con- 
tributory negligence  if  the  employer  is  permitted  to  set  up  that  de- 
fense Brown  v.  Lemon  Cove  Ditch  Co.,  36  Cal.  App.  94,  171  Pac.  705, 
1  W.  C.  L.  J.  915. 

92.  Mitchell  v.  Mystic  Coal  Co.,  —  la.  — ,  179  N.  W.  428,  6  W.  C.  L.  J. 
657;    Mitchell  v.  Swanwood  Coal  Co.,  182  la.  1001,  166  N.  W.  391. 

93.  Mitchell  v.  Phillips  Mining  Co.,  181  la.  600.  165  N.  W.  108,  1  W.  C. 
L.  J.  190;    Mitchell  v.  Des  Moines  Coal  Co.,  —  la.  — .  165  N.  W.  113,  1 
W.  C.  L.  J.  200. 

94.  Butkovitch  v.  Centerville  Block  Coal  Co.,  —  Iowa  — ,   (1920),  177 
N.  W.  479,  6  W.  C.  L.  J.  35. 

95.  Zukas  v.  Appletou  Mfg.  Co.,  297  111.  171,  116  N.  E.  810. 

85 


§15  WORKMEN'S  COMPENSATION  LAWS. 

act,  or  has  in  that  manner  exercised  the  option  frequently  given 
him  when  the  employer  has  defaulted  as  to  some  duty  required 
of  him  by  the  act,96  which  defenses  release  the  employer  from 
liability  for  damages. 

But  this  contention  will  not  avail  others  than  the  employer 
and  in  an  action  against  third  parties  election  of  the  employe, 
to  reject  need  not  be  alleged  nor  proved  by  the  claimant.97 

The  employer's  rejection  of  the  Act  need  not  be  alleged  in 
every  count.98 

It  is  held  in  Arizona  that  the  Compensation  Act  does  not 
restrict  or  limit  the  right  of  a  personal  representative  to  sue  for 
wrongful  death  under  paragraph  3372  Eev.  Statutes,  Arizona 
1913.99 

In  an  action  at  common  law  for  injuries  caused  by  the  negli- 
gence of  a  non-assenting  employer,  it  was  incumbent  upon  the 
plaintiff  to  prove,  as  he  had  alleged,  that  he  was  in  the  exercise 
of  due  care  at  the  time  of  the  injury.  Defendant's  admission 
during  the  course  of  the  trial  that  he  was  employing  more  than 
five  workmen,  and  that  he  was  not  an  assenting  employer  did  not 
relieve  the  plaintiff  from  the  necessity  of  proving  his  allegation ; 
the  admission  as  to  the  number  of  workmen  being  immaterial  as 
there  was  no  allegation  as  to  that  fact,  and  in  the  absence  of  an 
appropriate  allegation  by  way  of  a  brief  statement,  it  is  assumed 
that  the  defendant  is  in  Maine  a  non-assenting  employer.1 

96.  Brabon  v.  Gladwin  Light  etc.  Co.,  201  Mich.  697,  167  N.  W.  1024,  2 
W.  C.  L.  J.  302;    Arkansas  Valley  Ry.  Light  &  Power  Co.  v.  Ballinger,  — 
Ark.  — ,  (1919),  178  Pac.  566,  3  W.  C.  L.  J.  581. 

97.  Voce  v.  Central  Illinois  Public  Service  Co.,  286  111.  519,  (1919)  122 
N.  E.  134,  3  W.  C.  L.  J.  613. 

98.  Hughes  v.  Eldorado  Coal  &  Mining  Co.,  197  111.  App.  259. 

99.  Inspiration  Consol.  Copper  Co.  v.  Conwell,  —  Ariz.  — ,  190  Pac.  88,  6 
W.  C.  L.  J.  249;    Behringers  Admix,  etc.,  v.  Inspiration  Copper  Co.,  17 
Ariz.  232,  149  Pac.  1065. 

1.  Nicholas  v.  Folsom,  —  Me.  — ,  (1920),  110  Atl.  68,  6  W.  C.  L.  J.  182; 
Nadeau  v.  Caribou  Light  and  Power  Co.,  118  Me.  325,  108  Atl.  190. 


86 


CHAPTER  III. 

WHO  COMES  UNDER  THE  ACT. 

Sec. 

16.  General. 

17.  Every  Person,  Corporation,  Association,  etc.,  As  Employers. 

18.  Every  Person,  Corporation,  Association,  etc.,  As  Employers  (Cont.) 

19.  Employees  Generally. 

20.  Who  are  Employees. 

21.  Who  Are  Employees  (Cont'd). 

22.  Employment  Through  Agents  And  Assistants. 

23.  Employee  Doing  Incidental  Work. 

24.  Loaned  Employees. 

25.  Partnership  As  Employer. 

26.  Employers  of  Teamsters. 

27.  Employer  Of  Less  Than  Stated  Number  Of  Employees. 

28.  Regularly  Employed  And  Usual  Business  Of  Employer. 

29.  Casual  Employments  And  Regularly  Employed  In  Unusual  Business 

Of  Employer. 

30.  Employments  Not  Casual. 

31.  Farm  Labor. 

32.  Employments  Held  Not  To  Be  Farm  Labor. 

33.  Domestic  Servants. 

34.  Persons  Whose  Average  Annual  Earnings  Exceed  A  Stated  Amount, 

Excluded. 

35.  Officials  Of  Political  Subdivisions. 

36.  Employees  Of  The  State  And  Its  Political  Subdivisions. 

37.  Independent  Contractors. 

38.  Workmen   Held  Independent  Contractors  Not  Employees. 

39.  Workmen  Held  Employees  And  Not  Independent  Contractors. 

40.  Owner  of  Premises  As  Employer  Of  The  Employees  Of  His  Con- 

tractors And  Subcontractors. 

41.  On,  Or  About  the  Premises. 

42.  Liability  of  Owner  Or  Lessor  To  Employees  Of  Lessee. 

43.  Dual    Employers,    Employments,    And    Business    Enterprises. 

44.  Subrogation  And  Third  Persons  As  Affected  By  The  Acts. 

45.  Subrogation  And  Third  Persons  As  Affected  By  The  Acts.  (Cont'd). 

46.  Cases  Exclusively  Covered  By  Federal 

47.  Extra  Territorial   Application   Of  Acts. 


87 


§16  WORKMEN'S  COMPENSATION  LAWS. 

§  16.  General. — The  following  provisions  with  varying  slight 
modifications  are  typical  of  most  American  Compensation  Acts. 

"The  word  'employer'  as  used  in  this  act  shall  be  construed 
to  mean  every  person,  partnership,  association,  corporation, 
trustee,  receiver,  and  every  other  person,  including  any  person 
or  corporation  operating  a  railroad,  and  any  public  service  corpora- 
tion, using  the  service  of  another  for  pay ." 

"The  word  'employee'  as  used  in  this  act  shall  be  construed 
to  mean  every  person  in  the  service  of  any  employer  as  defined 
in  this  act,  under  any  contract  of  hire,  express  or  implied,  oral 
or  written ." 

In  the  great  majority  of  claims  for  compensation,  no  question 
arises  as  to  whether  the  required  contractual  relation  of  employer 
and  employee  exists.  There  are,  however,  many  cases  where  the 
question  is  difficult  of  determination  and  other  cases  where  it  is 
purposely  made  so  by  persons  seeking  to  evade  liability  under 
the  act.1  For  example,  a  workman  may  be  loaned  by  one  employ- 
er to  another,  an  owner  of  teams  employs  drivers  and  rents  the 
teams  and  drivers,  sometimes  including  himself,  for  a  stipulated 
sum  for  both,  frequently  a  series  of  contracts  and  sub  contracts 
clouds  the  question.  Again,  two  or  more  employers  between 
whom  contractual  relations  exist  may  be  interested  in  the  same 
enterprise,  making  it  difficult  to  say  whether  one  is  an  employee 
of  a  particular  employer  or  of  all  of  them.  A  shareholder  and 
vice  president  of  a  corporation  who  worked  with  the  regular 
workmen,  though  at  the  same  time  acting  as  foreman,  has  claim- 
ed compensation  as  an  employee  and  recovered  ;2  while  it  has 
been  held  that  the  president  and  majority  stockholder  of  a 
manufacturing  corporation  could  not  obtain  compensation 
for  injuries  received  while  engaged  in  manual  labor  for  the 
corporation.8  It  would  be  impossible  to  formulate  any  gen- 

1.  Mezansky  v.    Sissa,  1    Conn.    Comp.  Dec.   430. 

2.  Beckman  v.  Oelerich  &  Son,  174  App.  Div.  353,  160  N.  Y.   S.   791; 
Benjamin  v.  Rorenberg  Bros.,  223  N.  Y.  569,  119  N.  B.  1030,  18  N.  C.  C. 
A.  906,  Affg  180  N.   Y.   App.  Div.  234,   167  N.   Y.   S.  655,  1    W.  C.  L.  J. 
670. 

3.  Bowne  v.  Bowne  Co.,  221  N.  Y.  28,  116  N.  E.,  reversing  the  order 
176  App.  Div.     131,  162  N.  Y.  S.   244.     But   see      Kennedy  v.  Kennedy 

•   88 


WHO  COMES  UNDER  THE  ACT.  §16 

eral  rule  on  these  diverse  cases  that  would  be  of  much  assist- 
ance. More  can  no  doubt  be  acomplished  by  a  study  of  the 
rulings  and  reasons  of  courts  and  commissions  in  the  decided 
caes,  which  will  facilitate  reasoning  by  analogy  to  the  logical 
ruling  to  be  applied  to  the  facts  of  the  case  at  hand.  In  an 
Iowa  case  the  court  said  of  the  terms  "employer"  and  "em- 
ployment" "They  are  not  of  the  technical  language  of  the 
law  or  of  any  science  or  pursuit  and  must,  therefore  be  construed 
according  to  the  context  and  the  approved  usage  of  the  lan- 
guage."* 

The  construction  of  the  terms  employer  and  employee,  as  above 
set  out,  gives  the  general  suggestion  that  a  contract  of  hire,  written 
or  oral,  express  or  implied,  must  be  found  to  exist  between  the 
person  claiming  compensation  and  the  one  against  whom  the 
claim  for  compensation  is  made,  otherwise  the  latter  is  not  liable 
to  pay  the  compensation  provided  under  the  act.5  As  to  when 
or  where  such  contract  exists  is  sometimes  difficult  of  determina- 
tion and  much  conflict  is  found  in  the  decisions.  The  burden  of 
establishing  the  existence  of  the  contract  or  the  relationship  of  • 
employer  in  reference  to  some  matter  outside  the  risks  assumed 
titled  to  compensation.6 

Mfg.  etc.  Co.,  177  App.  Div.  56,  163  N.  Y.  S.  944,  reargument  granted  in  178 
App.  Div.  946,  165  N.  Y.  S.  1094;  Howard  v.  Howard,  221  N.  Y.  605,  117 
N.  E.  1072,  15  N.  C.  C.  A.  461. 

4.  The  State  v.    Foster,  37   la.  404. 

5.  Lenk  v.    Kansas  &    T.  Coal    Co.,    80  Mo.  App.  374;     Rhatigan    v. 
Brooklyn  Union  Gas  Co.,  136  App.  Div.  727;    121  Supp.  481;    Kimball 
v.  Cushman,  103  Mass.  194;     Wood  v.  Cobb,  3  Allen,  58;     United  States 
Board  and  Paper  Co.   v.  Landers,  47  Ind.  App.  315,  93  N.  E.   232;     Sing- 
er Mfg.  Co.  v.  Rahn.  132  U.  S.  518;  Sibley  v.  State,  89  Conn   682,  96  Atl. 
161,  L.  R.  A.   1916C,   1087;    Hillestad  v.  State  Industrial   Ins.   Com.,  80 
Wash.  426,  141  Pac.  913,  Ann.  Cas.  1916B,  789;    Kemp  v.  Lewis,  3  K.  B.  543, 
7  B.  W.  C.  C.  422  C.  A.;   Wray  v.  Taylor,  109  L.  T.  Rep.  N.  S.  120;  Bobbey 
v.  Crosbie,  6  B.  W.  C.  C.  592  C.  A.;  In  re  Cox,  225  Mass.  220,  114  N.  E. 
281;    Pierson  v.    Rapid  Transit  Co.,  102   Misc.   Rep.    130,   168    N.   Y.    S 
425,  1  W.  C.   L.  J.  705;    Acklin  Stamping  Co.  v.  Kutz  (Ohio),  120  N.  E. 
229,  2  W.  C.  L.  J.  883;  In  re  Connerford,  247  Mass.   571,  113  N.  E.  460; 
Nissen  Transfer   &  Storage  Co.   v.    Miller,  —   Ind.  — ,    125  N.  E.  652,  5 
W.  C.  L.  J.  519;  Matter  of  Fitzgerald,  21   Misc.  226. 

6.  Zeitlow    v.  Smock,    —Ind.  App.—.  117   N.  E.    665;     Rockford  City 
Tr.  Co.    v.  Industrial  Comm.,    —111.—,  129    N.  E.    135. 

89 


§17  WORKMEN'S  COMPENSATION  LAWS. 

§  17.  Every  Person,  Corporation,  Association,  etc.,  as  Employ, 
ers. — It  has  been  held  that  the  test  by  which  to  determine  whether 
a  person  is  an  employer  of  another  is  to  ascertain  whether,  at  the 
time  the  injury  was  suffered,  the  other  was  subject  to  such  person 's 
orders  and  control  and  was  liable  to  be  discharged  for  disobedience 
of  orders  or  misconduct.7  It  appears  however  from  the  decisions 
that  this  rule  is  not  always  uniformly  applied.  It  has  been  held 
that  a  caddie  for  a  golf  club,  paid  by  the  member  whom  he  serves, 
is  an  employee  of  the  club  and  not  of  the  member  he  might  be 
serving  at  the  time  of  the  accident  ;8  that  an  infant  employer  can- 
not evade  the  responsibilities  of  the  act  by  reason  of  his  infancy;9 
that  the  relation  of  employer  and  employee  does  not  depend  upon 
the  legality  of  the  contract  of  employment;10  that  an  employee 
may  compel  the  appointment  of  an  administrator  to  take  the  place 
of  the  deceased  employer  from  whom  the  employee  was  entitled 
to  compensation;11  that  an  owner  of  a  chartered  vessel  and  not 
the  charterer  is  the  employer  of  the  captain;12  that  a  person  who 
has  made  colorable  transfer  of  his  business  and  not  the  transferee 
is  the  employer  ;13  that  the  owner  of  a  garage  is  not  the  employer 
of  another's  chauffeur  Avith  whom  he  has  an  agreement  to  pay 

7.  United  States  Board    &  Paper  Co.  v.  Landers,    47  Ind.   App.    315, 
93  N.  E.    232;    Tuttle    v.    Embury  Martin    Lumber  Co.,    192   Mich.   385, 
158  N.  W.  875;     Shepard  v.  Jacobs,  204  Mass.  110,  90  N.  E.  392,  26  L.  R. 
A.   (N.  S.)  442,  134  Am.  St.  Rep.  648.     But  see     Pollard  v.  Goole  &  Hull 
Steam  Towing  Co.  Ltd.,    3  B.   W.  C.  C.  366,   C.   A.;     State  ex   rel.  Vir- 
ginia &  Rainy  Lake  Co.  v.  District  Court,  120  Minn.  43,  150  N.  W.  211; 
Mason  v.  Western  Metal  Co.,  1  Cal.  I.  A.  C.   Dec.  284;     Smith  v.  Eich- 
elberger,  175  111.   App.  231.    Washington  Act,  1921  §  6604-3. 

8.  Harris  v  Claremont  Country   Club,    2  Cal.     Ind.  Com.  972;     Clare- 
mont  Country  Club  v.  Indus.  Ace.  Com.,  174  Cal.  395,  163  Pac.  209,  15 
N.  C.  C.  A.  448;    Chisolm  Chase,  —  Mass.  — ,  1921,  131  N.  E.  161. 

9.  Re  Smith,  17  West  L.  Rep.  (Can.)  650. 

10.  Boyle  v.  A.  Cheney  Piano  Action  Co.,  —  N.  Y.  App.  — ,  184  Supp. 
374,  7  W.  C.  L.  J.  93. 

11.  L.  R.  A.  1916A   (note)    113,  Re  Bryne,    (1910  Prob.),   44   Ir.   Law 
Times  98,  3  B.  W.  C.  C.  591.    Who  are  employers,  see  L.  R.  A.  1916A,  note 
p.  13;    Also  L.  R.  A.  1916A,  note  p.  245. 

12.  Norman  v.  Empire  Literage  &  Wrecking  Co.,  2  N.  Y.  St.  Dep.  Rep. 
480;    Mackinnon  v.   Miller,  (1909),  46   Scotch  L.    R.  299,   2  B.  W.  C.    C. 
64,  Ct.  of  Sess. 

13.  McCormick   v.  Sander,  37  N.   J.  Law  J.  56. 
90 


WHO  COMES  UNDER  THE  ACT.  §17 

him  a  commission  on  any  sales  of  automobiles  he  helps  to  effect 
where  the  chauffeur  is  injured  while  cranking  a  car  which  the 
garage  owner  was  at  the  time  trying  to  sell  to  a  prospective 
buyer;14  that  a  contractor  who  assigned  his  contract  but  hired  the 
employees  and  superintended  the  work  was  the  real"  employer  ;18 
that  several  different  persons  who  employ  a  watchman  to  watch 
their  respective  premises  are  joint  employers  ;16  and  also  that  only 
the  employer  on  whose  premises  he  was  injured  is  liable  to  pay 
compensation  ;1T  that  an  employee  may  elect  which  of  two  em- 
ployers to  proceed  against  for  compensation;18  that  where  a 
janitor,  employed  by  a  public  school  and  others,  was  injured  while 
at  work  in  the  school,  the  latter  was  liable  for  compensation;19 
that  employers  jointly  interested  are  severally  liable  to  their  re- 
spective employees20  but  where  it  is  uncertain  which  of  two  or 
more  interested  in  a  joint  enterprise  is  the  employer,  all  are 
liable;21  that  an  employee  who  had  been  instructed  by  an  officer 
of  the  company  to  do  certain  work  about  the  home  of  an  officer 
and  was  killed  in  such  private  work  the  company  was  liable  for 
compensation  :22  that  six  firms  employing  the  same  night  watch- 

14.  Lane  v.  Herrick,   3   Cal.  Ind.  Ace.  Com.  29. 

15.  Schuman  v.  Employer's  Liability  Assurance  Corp.,  2  Mass.  Ind.  Ace. 
Bd.  599;    Kramer  v.  Schalke,.The  Bulletin,  N.  Y.  Vol.  1,  No.  8,  p.  8. 

16.  Curran  v.  Newark  Gear  Cuttin     Machine  Co.,  37  N.  J   Law  J.  t\. 

17.  Mason  v.  Western  Metal  Supply  Co.,  1  Cal.  Ind.  Ace.  Com.  (Part 
II)    284,    11    N.   C.   C.   A.    245,   affirmed,    Western    Metal    Supply    Co.    v. 
Pillsbury,  172    Cal.    407,     156  Pac.  491;     James   v.  Witberbee,  Sherman 
&  Co.,  2  N.  Y.  St.  Dep.  Rep.  483. 

18.  Johnson  v.  Mountain  Commercial  Co ,  1  Cal.  Ind.  Ace.  Com.  (Part 
II),   100. 

19.  Penfleld  v.  Town  of  Gla=tonbury,  1  Conn.  Comp.  Dec.  637. 

20.  Old  Times  Distillery  Co.  v.  Zehnder,  52  8.  W.  1051.  21  Ky.  Law 
Rep.    753;     Spooner  v.  Detroit  Saturday    Night  Co.,   Mich.    Indus.  Ace. 
Bd.  July  1913;    Walker  v.  Santa  Clara  Oil  &  Dev.  Co.,  2  Cal.  Ind.  Ace. 
Com.  5. 

21.  Schoen   v.  Cliicagr  St    P.  M.    &  O.    Fy.   Co.,     127  N.  W.  433,  112 
Minn.  38,  45    L.  R.   A.    (N.  S.)    84;   Sinner    v.  Town  of  Colchester,    1 
Conn.    Comp.  Dec.  286. 

22.  Del  Prlore  v.  Booth  Bros.  A  H.  I.  Granite  Co.,  1  Conn.  Comp.  Dec. 
300.     Contra  re  William   A.  Jones,  Claim  No.   4173   Ohio   Ind.   Ace.  Bd. 
June  4.  1913. 

91 


§17  WORKMEN'S  COMPENSATION  LAWS. 

man  do  not  constitute  an  association;23  that  one  employed  in  the 
capacity  of  teamster  could  request  a  passerby  to  assist  in  such 
work,  the  Court  remarking  that,  "The  service  rendered,  though 
casual  standing  alone,  was  in  the  usual  course  of  the  relator's 
business,  and  therefore  within  the  statute,"  and  the  passerby 
was  awarded  compensation  ;24  that  a  bank  is  not  an  employer  of 
one  of  its  directors  who  performed  no  duties  in  connection  there- 
with, except  to  attend  directors' meetings,  for  which  he  received 
$5.00  for  each  meeting  ;25  that  dairies  are  employers  within  the 
meaning  of  the  act  and  not  farmers  ;26  that  charitable  institutions 
are  employers;27  that  a  railroad  company  is  the  employer  of  an 
apprentice  fireman  although  the  latter  received  no  pay  for  his 
work;28  that  railroads  engaged  only  in  intrastate  commerce  can 
be  considered  employers  within  the  meaning  of  the  act.29  "When 
the  Act  excludes  employees  of  railroad  companies  operating 
steam  railroads  as  common  carriers,  the  legislative  intent  was 
held  to  be  that  roads  not  operating  as  common  carriers  should 
remain  under  the  act.30 

The  relation  of  employer  and  employee  was  not  terminated  ba 
cause  the  employee  laid  off  from  work  the  day  preceding  the 

23.  Western  Supply  Metal  Co.  v.  vPillsbury,  172  Gal.  407,  156  Pac.  491, 
Ann.  Gas.  1917E,  390. 

24.  State  v.  Ramsey  Co.,  138  Minn.  416,  165  N.  W.  268,  1  W.  C.  L. 
J.  642;    Paul  v.  Peter  Nikkei  et  al.,    1  Gal.   [nd.   A.CC.  Com.   648;    Gin- 
ther  Knickerbocker   Co.,  1  Cal.  I.   A.  C.    458;   Tucker   v.  Buffalo  Cotton 
Mills,  57   S.  E.  626,  76  S.  C.  539. 

25.  Burnham  v.  The  Thames  National  Bank,  1  Conn.  Comp.  Dec.  339. 

26.  Bulletin  No.  11,  Minn.  Dep.  Labor  &  Ind.  22. 

27.  Mac.  Gillivray  v.  The  Northern  Counties  Institute  for  the  Blind,  4  B. 
W.  C.  C.  429,  11  N.  C.  C.  A.  77;    Porton  v.  Central   (Unemployed)   Body 
for  London   (1908),  100  L.  T.  102,  2  B.  W.  C.  C.  296;    11  N.  C.  C.  A.  78, 
Leg.   Op.   la.   Ind.   Com.    (1915),    13;     Garcia   v.    County   of   Los   Ange- 
les, 3   Cal.   Ind.   Ace.   Com.   330;    Burns  v.   Manchester   &   S.  W.   Mission 
(1908)   99  L.  T.  579;   1  B.  W.  C.  C.,  305;  Gilroy  v.  Mackie  and  others,  46 
Scotch  L.  R.  325,  11  N.  C.  C.  A.  78. 

28.  Smith  v.  Western  &  A.  R.  Co.,  67  S.  E.  818,  134  Ga.  216. 

29.  Blevins   v.  The   Dayton   Union   Ry.   Co.,   2   Bull.   Ohio  Ind.   Com. 
30.    See  also  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.   Ind.    Com.   of 
Wis.,  141  N.  W.  1119;    153  Wis.  552,  3    N.  C.   C.  A.    707. 

30.  State  ex  rel.  Winston-Dear  Co.  v.  Dist.  C.  of  St.  Louis  Co.,  146 
Minn.—,  176  N.  W.  749,  5  W.  C.  L.  J.  711. 

92 


WHO  COMES   UNDER  THE   ACT.  .  §17 

accident.  The  fact  that  he  had  been  sent  home  by  the  superin- 
tendent and  was  told  not  to  work  when  unable  had  no  bearing 
inasmuch  aa  he  was  doing  work  assigned  him  on  the  day  of  the 
accident.31 

Where  an  employee  was  set  to  work  without  a  physical  exami- 
nation, though  the  employer's  rules  required  it,  the  employer  was 
held  to  have  waived  the  formality  and  the  employee  when  injured 
in  the  course  of  his  employment  was  held  to  have  been  an  em- 
ployee.32 

Where  the  evidence  showed  that  two  persons  were  jointly  run- 
ning a  rock  crushing  business,  though  they  sought  to  show  that  the 
sales  department  was  a  separate  business,  the  employee  who  was 
killed  at  the  crushing  plant  was  held  to  be  an  employee  of  the 
joint  employers.83 

One  who  contracted  to  take  a  picture  for  a  film  company  for 
a  certain  sum  and  agreed  to  furnish  all  appurtenances  and  as- 
sistants, is  the  employer  of  those  hired  by  him,  the  film  company 
is  not  the  employer  of  such  assistants.84 

One  employed  as  a  pumper  at  an  oil  well  had  authority  to 
secure  incidental  help,  who  would  be  in  the  employ  of  the  owners 
of  the  oil  lease.35 

A  jobbing  grinder  who  worked  for  other  firms  than  his  employ- 
er, was  while  so  engaged  not  in  the  employ  of  the  principal  em- 
ployer.86 

An  oil  company  who  selected,  directed  and  controlled  a  timber 
sealer  who  was  working  for  a  lumber  company  upon  the  property 
of  the  oil  company  was  the  employer  of  the  sealer,  who  was  killed 

31.  Chicago  Cleaning  Co.  v.  Ind.  Board  of  111.,  283  111.  177,  118  N.  B.  98», 
1  W.  C.  L.  J.  940,  18  N.  C.  C.  A.  906 

32.  Illinois  Central  R.  Co.  v.  Ind.  Board  of    111.,  284  111.  267,  119  N.  E. 
920,  2  W.  C.  L.  J.  444. 

33.  Gray  v.  Ind.  Ace.  Comm.,  34  Cal.  App.  713,  168  Pac.  702,  1  W.  C.  L. 
J.  151. 

34.  McDough  v.  Ind.  Ace.  Comm.,  34  Cal.  App.  177,  166  Pac.  1024,  13 
N.  C.  C.  A.  448. 

35.  Tillburg  v.  McCarthy  &  Townsend,  179  N,  Y.  App.  DIv.  598,  166  N. 
Y.  S.  878,  15  N.  C.  C.  A.  449. 

36.  Gates  v.  Thomas  Turner  &  Co.,  (1916)  W.  C.  &  Ins.  Rep.  335,  15  N. 
C.  C.  A.  450. 

93 


§17  WORKMEN'S  COMPENSATION  LAWS. 

by  a  tree  felled  by  the  lumber  company,  even  though  the  timber 
company  contributed  a  portion  of  the  employee's  wage.37 

A  manufacturing  company  which  was  installing  a  blow  pipe 
system  in  another  company's  plant  was  the  employer  of  a  man 
who  was  under  its  direction  and  control,  even  though  he  was 
paid  by  the  other  company.38 

Where  a  partnership  sublet  a  portion  of  its  contract  on  a 
building  to  a  corporation,  and  for  the  accommodation  of  the  corpo- 
ration hired  a  man  who  was  never  informed  that  he  was  in  the 
employ  of  the  corporation,  but  thought  he  was  an  employee  of 
the  partnership,  the  latter  was  held  liable  as  his  employer.39 

A  watchman  employed  and  paid  by  an  interstate  railroad  at  a 
crossing  where  the  tracks  of  an  intrastate  railroad  also  crossed 
and  half  of  whose  wages  were  paid  by  the  latter  railroad,  was  an 
employee  of  both  roads  and  could  recover  from  the  intrastate  road 
even  though  the  injuries  resulting  in  death  were  caused  by  the 
interstate  road.40 

The  mere  signing  of  checks  for  the  wages  of  an  employee  does 
not  make  one  an  employer  of  the  person  receiving  the  checks.41 

Where  two  men  applied  to  G.  for  work  and  the  next  day  ho 
directed  one  of  them  to  work  for  his  father  because  G.  could  not 
use  him,  and  .he  was  injured,  the  father  was  the  employer  even 
though  he  may  have  been  originally  hired  by  G.42 

One  who  works  under  a  general  contractor  in  the  repair  of 
a  city's  fire  alarm  wires  and  is  paid  by  the  contractor,  but,  at  the 
time  of  the  injury,  is  doing  the  work  in  accordance  with  the  orders 
of  the  city's  superintendent  of  the  fire  department,  is  entitled  to 
compensation  as  an  employee  of  the  city.43 

37.  Kirby  Lumber  Co.  v.  McGilberry,  —  Tex.  Civ.  App.  —  ,  205  S.  W. 
835,  3  W.  C.  L.  J.  75. 

38.  Arnett  v.   Hayes  Wheel  Co.,  201  Mich.  67,  166  N.  W.  957,  1  W.  C. 
L.  J.  1061,  18  N.  C.  C.  A.  916. 

39.  Scott  v.   O.  A.  Hankinson  &   Co.,   205   Mich.  353,  171   N.  W.  489,  3 
W.  C.  L.  J.  759,  18  N.  C.  C.  A.  917. 

40.  San  Francisco,  Oakland  Terminal  Rys.  v.  Ind.  Ace.  Comm.,  180  Cal. 
— ,  179  Pac.  386,  3  W.  C.  -L.  J.  682,  18  N.  C.  C.  A.  918. 

41.  Lezala  v.  Indus.  Comm.,  —  Mich.  — ,  175  N.  W.  87. 

42.  Smith  v.  Eichelberger,  175  111.  App.  231;     Consolidated  Fire  Works 
v.  Koehl,  190  111.  145. 

43.     Chisolm   Case,  —  Mass.  —  1921,   131  N.  E.  161. 
94 


WHO  COMES  UNDER  THE  ACT.  §18 

§  18.  Every  Person,  Corporation,  Association,  etc.,  as  Em- 
ployers (Cont'd) — One  is  none  the  less  an  employer  by  reason 
of  a  workman  having  been  in  his  employment  a  very  short  time41 
or  that  he  has  a  contract  with  a  third  person  by  virtue  of  which 
compensation  will  eventually  fall  on  such  third  person.45  It  has 
been  held  that  one  is  not  the  employer  of  a  workman  who  applied 
for  work  and  was  refused  it,  but  was  sent  by  the  first  party  to 
another  who  had  requested  Of  him  the  loan  of  a  man;40  that  work 
men  engaged  in  mining  coal  are  employees  of  the  mine  owner, 
though  the  operations  are  carried  on  under  a  contract  with  a 
third  party,  who  selects  and  pays  the  workman  but  the  mine  owner 
has  reserved  control  and  supervision  over  the  mine;47  that  the 
principal  of  an  agent  who  employs  helpers  or  assistants  for  the 
benefit  of  the  principal  is  the  employer  of  such  helpers  or  assist- 
ants ;48  that  a  firm  which  employed  a  ganger  to  unload  a  barge  of 
sulphur  was  not  the  employer  of  the  men  whom  the  ganger  hired 
to  help  him  and  with  whom  he  divided  the  money  received  for 
the  work;40  that  the  individual  members  of  a  labor  union,  an 
unincorporated  association  with  no  funds,  are  the  employers  of 
their  janitor  and  cannot  avoid  personal  liability  for  compensa 
{ion;no  that  a  rancher  who  hires  nearby  railroad  section  men  to 
help  fight  a  fire,  though  the  railroad  is  not  in  danger,  is  their 
employer,  even  though  their  foreman  also  requested  them  to  as- 

44.  Lysons   v.  Knowles  &   Sons,   Ltd.,  3  W.  C.  C.  11;    Heist  v.    Wis- 
consin-Minnesota Light  &  Power  Co.,  T-  \Vis.  — ,   (1920)   179  N    W.  583, 
6  W.  C.  L.  J.  728. 

45.  Gallagher  v.  New  York  Central  R.  R.  Co.,  The  Bulletin,  N.  Y.  Vol. 
1.  No.  11,  p.  21. 

46    Boswell  v.  Gilbert,  2  B.  W.  C.  C.  261,  C.  C. 

47.  Skinner  v.  Stratt.on  Fire  Clay  Co.,  Vol.  1,   No.  7,   Bui.  Ohio  Com. 
p.  103. 

48.  Dolan  v.   Judson,  1  Conn.  Comp.  Dec.  362;    Schmidt    v.  William 
Pfiefer,  B.  W.  B.  B.     Co.,   Bui.  No.  1,   111  .p.  118;     McNally  v.  Diamond 
Mills  Paper  Co.,  The  Bui.  N.  Y.  Vol.  1.  \o   11,  p    12;     Peabody  v.  Town 
of  Superior,  Bud.  Wis.  Inds.  Com.  Vol.  1,  p.  99. 

49.  Soloski  v.  Strickland,  1  Conn.  Comp.  Dec.  564.    Contra:    Bobbey 
v.  Crosbie,  W.  C.  &  Ins.  Rep.  366,   (1916)   Rev'g  W.  C.  ft  Ins.  Rep.  258 
(1915)   15  N.  C.  C.  A.  450. 

60.    Gerber  v.  Central  Council  of  rftocktou,  2  Ca'i.  I.  A.  C.    Des   654. 

95 


§18  WORKMEN'S  COMPENSATION  LAWS. 

sist;51  that  one  who  had  a  contract  with  a  firm  of  plumbers  and 
assigned  to  the  firm  one  of  his  workmen  to  work  for  its  benefit 
but  paid  the  workman  himself  is  the  workmen's  employer;62  that 
a  corporation  may  be  the  employer  of  one  of  its  officers;53  that 
a  receiver  conducting  the  business  of  a  corporation  is  the  employer 
of  its  employees;54  that  a  land  owner  is  not  the  employer  of  a 
woodcutter  hired  by  an  agent  of  a  contractor  who  contracted  with 
the  land  owner  to  cut  his  wood,  the  woodcutter  furnishing  his 
own  tools  and  determining  his  own  hours;55  that  the  fact  that  a 
father  from  time  to  time  gave  his  son,  nineteen  years  old,  small 
sums  of  money  did  not  make  him  his  son's  employer;56  that  a 
church  could  accept  the  Connecticut  Act,  but  was  not  the  employer 
of  choir  boys  to  whom  it  paid  but  twenty-five  cents,  per  month, 
for  moral  and  disciplinary  purposes  ;57  that  a  principal  contractor 
is  not  the  employer  of  one  hired  by  a  subcontractor  on  a  wood 

51.  Mazzini  v.  Pacific  Coast  Ry.,  2  C'al.  I.  A.  C.  Dec.  758;    Kennelly  v. 
Stearns  Salt  &  Lumber  Co.,  190  Mich.  628,  157  N.  W.  378;     London  & 
Lancanshire   Guaranty  &  Ace.  Co.  v.  Ind.  Ace.  Com.,    173. Cal.    642,  161 
Pac.  2. 

52.  lacovazzi  v  Coppolo,  1  Conn.  Comp.  Dec.  476. 

53.  In  re  Rawnes,  64  Ind.  App.  — ,  118  N.  E.  387,  1  W.  C.  L.  J.  562;  Reddy^ 
v.  National  Excavating  &  Foundation  Co.,  178  App.  Div.  943,  164  N.  Y! 
Supp.   1110;     Re  Howard,   221   N.   Y.   605,   117  N.   E.   1072;     Berman   v. 
Reliance  Metal   Spinning  and   Stamping  Co.,   175   N.   Y.    S.   838;     Cray- 
v.    Craycroft-Herrold    Brick  Co.,  2    Cal.   Ind.     Ace.    Com.    654;     Angus 
v.  White  Gulch  Mining  Co.,  3  Cal.  Ind.  Ace.  Com.  87;    Wilton  v.  Water- 
bury  Rolling  Mill  Co.,  1   Conn.   Oomp.  Dec.  78;     Bowne  v.   Bowne,  176 
App.  Div.   131,  162   Supp   244;     Matter  of   Beckman   v.   Oelerich   &  Son, 
174  App.  Div.  353,  160   Supp.  791;    Kenney  v.  Kenney  Mfg.  &   Engineer- 
ing Co.,  7  N.  Y.  St.  Dep.  Rep.  383,  163  Supp.  944;    Contor  v.  Rubin  Musi- 
cant  Co.,  3  N.  Y.  St.  Dep.  Rep.  392;  Koslowitsky  v.  Koslow  Iron  Works,  4 
N.  Y.  St.  Dep.  Rep.  360;    In  re  Moseley,  Jr.,  2  Bull.  Ohio  Ind.  Com.  19. 

54.  Wood  v.  Camden  Iron  Works   (D.  C.)    221  Fed.  1010;     Devine  v. 
Delano,  111  N.  E.  742;     Unrine  v.  Salina  Northern  R.  Co.  (Kan.)  3  W. 
C.   L.   J.   633,   178   Pac.   614. 

55.  Donlon  Bros.  v.  Ind.  Ace.  Com.,  173  Cal.  250,  159  Pac.  715;    Fi- 
delity, etc.  Co.  v.  Brush,  176  Cal.  448,  168  Pac.  890,  1  W.  C.  L.  J.  153. 

56.  Aetna  Life  Ins.  Co.  v.  Industrial  Ace.  Com.,  175  Cal.  91,  165  Pac. 
15. 

57.  Loveland   v.  Parish  of  St.  Thomas   Church,  1  Conn.    Comp.   Dec. 
14  A  church  pastor  is  not  an  employee  under  the  Iowa\  Act  Leg.  Op.  la. 
Ind.  Com.   (1919),  15. 

96 


WHO  COMES  UNDER  THE  ACT.  §18 

cutting  job;58  that  an  association  formed  as  a  medium  of  employ- 
ment of  its  members,  collecting  their  pay  and  distributing  the 
same  without  deduction  and  without  control  over  the  work  of  the 
members,  is  not  an  independent  contractor;89  that  where  the  own- 
er of  a  building  in  need  of  repairs,  called  upon  a  general  contract- 
or and  asked  him  to  do  the  work,  and  he  sent  a  plasterer  who  was 
in  the  habit  of  doing  odd  jobs  for  him,  charging  by  the  hour  or 
job,  such  plasterer  was  not  in  the  employ  of  the  contractor;60  that 
a  contract  to  furnish  the  stone  work  for  a  post  office  building  was 
held  to  show  the  relation  of  subcontractor  and  contractor  and  not 
employee  and  employer;81  that  where  a  contract  provided  that 
a  buyer  of  timber  should  reimburse  the  seller  for  wages  paid 
sealers,  not  to  exceed  $50.00  per  month  each,  a  sealer  employed 
by,  and  who  worked  under  the  direction  of  the  seller,  at  a  salary 
of  $70.00  per  month,  was  not  an  employee  of  the  buyer." 

Where  an  award  was  made  against  an  employer  who  was  a 
subcontractor  and  also  against  the  insurance  carrier  of  the  general 
contractor,  it  was  held  that  the  commission  had  had  no  authority 
to  make  an  award  against  any  other  person  than  the  immediate 
employer,  and  the  award  against  the  general  contractor's  carrier 
was  dismissed.83  In  an  earlier  case  in  the  same  state  the  court 
said,  "This  court  decided  in  Sturdivant  v.  Pillsbury  et  al.,  172 
Cal.  581r  158  Pac.  222,  and  Carstens  v.  Pillsbury  et  al.,  172  Cal. 
572,  158  Pac.  218,  *  *  •  that  under  the  Constitution  the 
Legislature  was  not  empowered  to  confer  judicial  authority  upon 
the  commission  to  inqure  into,  determine  and  enforce  liabilities 
under  Sec.  30  of  the  act,  in  favor  of  the  employee  against  persons 
other  than  his  immediate  employer."84  Contra  to  the  above, 
under  the  Massachusetts  Act,  an  employee  of  an  independent  con- 

58.  Tangournos  v.  Smith,  i83  N.  Y.  App.  Div.  751,  171  N.  Y.  S.  256,  2 
W.  C.  L.  J.  686. 

59.  Holcomb  v.  Standard  Oil  Co.,  et  a1.,  5  Cal    I   A.  C.  Dec.  240. 

60.  Woodhall  v.  Irwin,  167  N.  W.  845,  201  Mich.  400. 

61.  Mobley  v.  J.  S.  Rogers  Co.,  (Ind.  Apr.),  119  N.  E.  177. 

62.  Kirby  Lumber  Co.  v.  McGilberry,  (Texas),  205  S.  W.  835. 

63.  Worswick  Street  Paving  Co.  v.  Ind    Ace.  Comm   et    al.,  186  Cal. 
— ,  185  Pac.  953,  5  W  C.  L.  J.  342,  185  Pac.  958,  5  W.  C,  L.  J    349;  185 
Pac.  958;  5  W.  C.  L.  J.  350;     185  Pac.  959,  5  W.  C.  L.  J,  351. 

64.  Thaxter  v.  Finn.  178  Cal.  270,  173  Pac.  163.  2  W.  C.  L.  J.  431. 

97 
W.  C.— 7 


§19  WORKMEN'S  COMPENSATION  LAWS. 

tractor  may  recover  compensation  from  the  principal  where  he 
was  engaged  in  work  for  and  under  the  control  of  the  principal, 
upon  the  principal's  premises,  and  in  the  course  of  the  princi- 
pal's business,  though  his  immediate  employer  was  a  subcon- 
tractor of  the  principal.65 

Section  31  of  the  Illinois  Act  provides  that  if  the  principal 
contractor  does  not  require  the  subcontractor  to  protect  his  em- 
ployees by  insurance,  the  principal  employer  shall  be  deemed  an 
employer  jointly  with  the  immediate  employer.66 

§  19.  Employees  Generally. — The  subject,  who  are  employees, 
is  naturally  the  other  half  of  the  subject,  who  are  employers,  as 
you  do  not  have  the  one  without  the  other.  While  the  definition 
of  the  term  employee,  as  given  in  a  number  of  the  acts,  is  as 
specific  as  it  well  may  be,  there  are  nevertheless  many  cases 
where  the  application  of  the  definition  is  difficult  and  an  exami- 
nation of  the  decisions  will  be  helpful. 

It  may  properly  be  reiterated  here  that  the  rules  for  deter- 
mining the  existence  of  the  relation  of  employer  and  employee 
are  the  same  as  those  at  common  law  for  the  relation  of  master 
and  servant.07  Though  it  does  not  follow  from  the  fact  of  the 
existence  of  the  relation  of  employer  and  employee  or  master  and 
servant  that  the  compensation  act  applies,  as  it  must  further  be 
determined  that  the  relation  does  not  come  within  any  one  of  the 
employments  exempted  by  the  act.  The  term  employee,  as  used 
in  some  Acts,  is  a  broader  term  than  ' '  workman, ' '  which  is  used 
instead  in  other  acts.  As  for  example  in  an  English  case  a  lec- 
turer was  held  not  to  be  a  workman  and  therefore  not  under  the 
act.68 

65.  In  re  Comerford,  229  Mass.  573,  118  N.  E.  900,  1  W.  C.  L.  J.  793. 

66.  Butler  Street  Foundry  &  Iron  Co.  v.  Ind.  Board  of  Illinois,  277  III. 
70,  115  N.  E.  122,  15  N.  C.  C.  A.  486. 

67.  Western  Indemnity  Co.  v.  Pillsbury,   172  Gal.   807,  159  Pac.  721; 
Lenk  v.  Kansas  &  T.  Coal  Co.,  80  Mo.  App.  374;  Rhatigan   v.  Brooklyn, 
Union  Gas  Co.,  136  App.  Div.  727,  121  Supp,  481;   Kimball  v.  Cushman, 
103  Mass.  194;   Wood  v.  Cobb,  3  Allen  58;  United  States  Board  &  Paper 
Co.  v.  Landers,  47  Ind.  App.  315,  93  N.  ,E.  232; "Singer  Mfg.  Co.  v.  Rahn, 
Vt.  — ,  1921,  113  Atl.  818,  132  U.  S.  518,  33  L.  Ed.  440;   Kelly's  Depend- 
ents v.  Hoosac  Lbr.  Co.,  —  Vt.  —  (1921),   113  Atl.  818. 

68.  Waites  v.  Franco-British  Exhibition  (Inc.)  (1909),  2  B  W.  C.  C.  199. 
98 


WHO  COMES  UNDER  THE  ACT.  §19 

In  a  recent  New  Hampshire  case  the  court  said,  "The  test  to 
determine  whether  an  employee  is  entitled  to  the  benefit  of  the 
act  is  to  inquire  whether:  (1)  He  was  engaged  in  manual  or 
mechanical  labor ;  (2)  any  part  of  his  work  was~done  in  proxi- 
mity to  hoisting  apparatus  or  power-driven  machinery  (Moran 
v.  Nashua  Mfg.  Co.,  78  N.  H.  567,  103  Atl.  312) ;  and  (3)  whether 
five  or  more  persons  engaged  in  manual  or  mechanical  labor 
were  employed  in  and  about  the  mill,  etc.,  in  which  he  worked."611 

Where  miners  subtracted  a  certain  sum  per  ton  from  the  price 
paid  them  for  mining  coal  and  paid  it  to  a  shot  firer  whom  they 
hired,  supervised,  and  had  the  authority  to  discharge,  it  was 
held  the  power  was  delegated  to  them  by  the  operators,  and  the 
shot  firer  was  an  employee  of  the  mine  operators.70 

An  applicant  for  a  position  as  a  conductor  on  a  street  railway, 
who  had  never  been  appointed  and  was  to  receive  no  compensa- 
tion unless  he  was  accepted,  and  then  to  receive  a  bonus  at  the 
end  of  the  first  month,  was  not  an  employee  of  the  street  rail- 
way.71 

In  a  Connecticut  case  the  court  said:  "One  is  an  employee  of 
another  when  he  renders  service  for  him  and  what  he  agrees  to 
do  or  is  directed  to  do  is  subject  to  the  will  of  that  other  in  the 
mode  and  manner  in  which  the  service  is  to  be  done  and  in  the 
means  to  be  employed  in  its  accomplishment  as  well  as  in  the 
result  to  be  attained,"  and  held  that  a  reporter  who  was  under 
the  direction  of  the  publishers  was  an  employee,  even  though  he 
had  other  employment  when  not  serving  the  publishers.72 

In  a  Utah  case,  the  court  adopted  the  definition  from  2  Words 
and  Phrases  (New  Series)  261,  "An  employee  is  one  who  works 
for  and  under  the  control  of  another  for  hire."73 

69.  Regnier  v.  Rand,  79  N.  H.  — ,  108  Atl.  810,  5  W.  C.  L.  J.  559. 

70.  Bid  well  Coal  Co.  v.  Davidson  (Iowa),  174  N.  W.  592,  r>  W.  C.  L.  J. 
71. 

71.  Fineburg  v.  Pubic  Service  Ry.  Co.,  94  N  J.  L.  — ,  108  Atl.  311,  5  W. 
C.  L.  J.  299. 

72.  Kinsman  v.  Hartford  Courant  Co.,  94  Conn.,  — ,  108  Atl.  562,  5  W.  C. 
L.  J.  361. 

73.  Strieker  v.  Indus.  Comm.,  —  Utah  — .  188  Pac.  849,  5  W.  C.  L.  J. 
920. 

99 


§20  WORKMEN'S  COMPENSATION  LAWS. 

That  the  term  applies  only  to  those  in  civil,  as  distinguished 
from  military  service,  was  held  in  a  New  York  case.  Notwith- 
standing the  employee  in  that  case  was  paid  by  the  city  of  New 
York,  he  was  held  to  be  in  military  service  and  not  protected  by 
the  Compensation  Act.74 

It  has  been  held  that  in  •construing  the  word,  courts  will  apply 
the  rule  of  liberal  construction.75 

§  20.  Who  are  Employees. — Employees  who  enter  into  a  pri- 
vate agreement  with  their  employers  to  waive  their  rights  under 
the  act  are  nevertheless  employees  within  the  intent  of  the  act, 
and  entitled  to  its  benefits,78  first,  because  such  agreements  are 
expressly  prohibited  by  special  provisions  in  most  Compensation 
Acts,  and,  second,  they  have  been  held  to  be  contrary  to  public 
policy.  An  employee  is  such  within  the  moaning  of  the  Compen- 
sation acts  even  though  his  contract  of  employment  existed  prior 
to  the  passage  of  the  act.  The  acts  do  not  impair  the  obligations 
of  the  contract,77  .as  all  contracts  are  subject  to  the  police 
power  ;78  though  the  acts  do  not  apply  to  an  action  for  injuries 
which  occurred  prior  to  the  passage  of  the  act.79 

It  has  been  held  that  where  an  agreement  has  been  made  to 
pay  compensation  to  the  captain  of  a  sailing  vessel,  during  his 
disability,  the  owners  were  estopped  from  afterwards  denying 
that  the  relation  of  master  and  servant  existed;80  that  though  a 
workman  obtained  employment  by  means  of  a  false  statement  in 

74.  Muller  v.  New  York,  189  App.  Div.  363,  178  N.  Y.  Supp.  416. 

75.  Marshall  Field  &  Co.  v.  Industrial   Comm.,  285  111.   333. 

76.  Powley  v.  Vivian  &  Co.,  169  App.  Div.  170,  154  Supp.  426,  10  N.  C. 
C.  A.  835;    Chicago  Railways  Co.  v.  Industrial  Board,  276  111.  112,  114  N.  E. 
534;    In  re  Geo.  M.  Gerhauser,  2nd  A.  R.  U.  S.  C.  C.  241;    Shaughnessy 
v.  Northland  S.  S.  Co.,  —  Wash.  — ,  162  Pac.  546,  B  1  W.  C.  L.  J.  1602. 

77.  State  ex    rel.  Nelson-Spelliscy  Co.    v.  District    Court    of  Meeker 
County,  128  Minn.  221,  —  N.  W.  623,  11  N.  C.  C.  A.  636;    State  v.  City  of 
Seattle,  73  Wash.  396,  132  Pac.  45. 

78.  In  re  McGuire,  31  Sup.    Ct.  259,   55  L.  Ed.    328.  219   U.  S.    549; 
Railway  v.  Schubert,  224  U.  S.   603,   56  L.  Ed.   911;    State  v.   Creamer, 
85  Ohio  St.  349,  39  L.  R.  A.  (N.  S.)    694. 

79.  Arizona  &  N.  M.  Ry.  Co.  v.  Clark,  207  Fed.  817. 

80.  Goodsell  v.  Steamship  "Loyd",  7  B.  W.  C.  C.  631. 
100 


WHO  COMES  UNDER  THE  ACT.  §20 

writing  that  amounted  to  a  misdemeanor,  under  the  New  York 
Penal  Law,  §  939,  he  was  nevertheless  an  employee  within  the 
meaning  of  the  Compensation  Act;81  that  the  mere  inten- 
tion of  an  employee  to  quit  his  position  after  a  certain  period 
does  not  discontinue  his  status  as  an  employee  where  he 
has  not  yet  acted  on  his  intent;82  that  a  substitute,  em- 
ployed and  paid  by  a  workman  who  is  ill,  is  the  employee 
of  the  sick  workmen's  employer;83  but  it  has  been  held 
otherwise  where  a  substitute  other  than  the  one  authorized  was 
employed  ;84  or  where  one  was  employed  unnecessarily  and  with- 
out authority;8"  that  a  carpenter  who  voluntarily  did  work  on 
a  structure  in  the  course  of  construction,  in  hope  of  later  being 
employed,  was  not  an  employee  and  compensation  was  refused  ;8" 
that  a  journeyman  paper  hanger  hired  by  a  foreman  of  a  depart- 
ment store 's  wall  paper  department  to  go  to  the  residence  of  pur- 
chasers to  hang  paper,  was  an  employee  of  the  department  store, 
as  it  paid  him  for  his  work  and  retained  authority  to  control  the 
work;87  that  an  apprentice  qualifying  himself  for  the  operation 
of  an  elevator  was  an  employee,88  •  even  though  such  apprentice 
may  receive  no  pay  for  his  services;89  that  a  piece  worker  over 
whose  work  the  employer  exercises  general  supervision  is  an  em- 
ployee;90 that  a  physician  injured  when  returning  from  attend- 

81.  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  497,  152  Supp.  117,  8  N.  C.  C 
A.  986;    Galveston  H.  S.  A.  Ry.  Co.  v.  Harris;    107,  S.  W.  108;    48  Tex.  Civ, 
App.  434. 

82.  Qoering  v.  The  Brooklyn  Mining  Co.,  2  Cal.  Ind.  Ace.  Com.  124;  12 
N.  C.  C.  A.  245. 

83.  Goshman  v.  Doggish,  1  Conn.  Comp.  Dec.  572;  Campbell  v.  City  of 
Los  Angeles,  2  Cal.  Ind.  Ace.  Com.  300;  Clark  v.  Morrison  and  Burns,  2 
Cal.  Ind.  Ace.  Com.  110. 

84.  McClelland  v.  Todd,  (1909),  43  Irish  L.  T.  J.  75;  2  B.  W.  C.  C.  472. 
85."  Corrigan  v.  Hunter,  122  S.  W.  131,  139  Ky.  315. 

86.  Steiman  v.  Anshi  Sfard,  2  Cal.  Ind.  Ace.  Com.  944;  Artenstein  v. 
Employers  Liability  Assur.  Corp.  Ltd.,  2  Mass.  Wk.  Comp.  Cases  699. 

87.  In  re  McAllister  229  Mass.  193,  118  N.  E.  326,  1  W  C.  L.  J.  618. 

88.  Pettee  v.  Noyes,  133  Minn.  109,  157  N.  W.  995;   Kilbury  v.  Vitcb, 
4  N.  Y.  St.  Dep.  Rep.  434. 

89.  Smith  v.  Western  &  A.  R.  Co.,  67  S.  E.  818;    134  Ga.  216.  Contra: 
Turner  v.  S.  S.  Haulwen.  8  B.  W.  C.  C.  242;  Beatty  v.  San  Diego  Elec. 
Ry.  Co.,  5  Cal.  Ind.  Ace.  Com.  241. 

90.  State  ex  rel.  Va.  &  Rainy  Lake  Co.  v.  DIsf.  Ct  of  St.  Louis,  Co.,  et. 

101 


§20  WORKMEN'S  COMPENSATION  LAWS. 

ing  to  an  incapacitated  employee  was  entitled  to  compensation, 
as  he  attended  to  all  compensation  cases  for  his  employer  under 
general  contract  of  hire  to  render  such  services;91  that  the 
superintendent  of  a  mill  is  an  employee  ;92  that  the  general  man- 
ager of  a  corporation  is  an  employee;93  (though  they  are  by 
some  acts  expressly  excluded)94  that  an  expert  mining  engineer 
retained  for  consulting  purposes  is  not  an  employee;95  that  a 
small  boy  who  receives  candy  and  fruit  for  helping  a  delivery 
man  for  a  grocery  store,  deliver  goods,  is  not  an  employee,96 
that  book  agents  or  canvassers,  who  may  devote  as  much  time  or 
as  little  as  they  desire,  to  their  work,  are  no  employees;97  that 
a  salesman  working  on  a  commission  with  a  guaranteed  net  re- 
turn is  an  employee  ;98  that  a  moving  picture  actor  is  an  em- 
ployee ;"  that  where  a  married  woman  cannot  contract  with  her 
husband  she  can  not  contract  to  be  his  employee.1 

al.,  128  Minn.  43,  150  N.  W.  211,  7  N.  C.  C.  A.  1076;  Travis  v  Hobbs,  Wall 
&  Co.,  2  Cal.  Ind.  Ace.  Com.  506;  Hale  v.  Johnson,  2  Cal.  Ind.  Ace.  Com. 
366;  Ryan  v.  Tipperary  North  Riding  County  Council,  8  B.  W.  C.  C.  415; 
Stonaker  v.  Jones  &  Delaney,  2  Cal.  Ind.  Ace.  Com.  831;  Malott  v.  Healey, 
2  Cal.  I.  A.  C.  Dec.  103;  In  re  Reinwold,  168  App.  Div.  425;  153  Supp.  598; 
Missouri  K.  T.  Ry.  Co.  v.  Romans,  114  S.  W.  157.  (Tex.  Civ.  App. . . ,) 

91.  Getzlaff  v.  Dr.  N.  T.  Enloe,  3  Cal.  Ind.  Ace.  Com.  18. 

92.  Aken  v  Barnet  &  Aufsesser  Knitting  Co.,  118  App.  Div.  463,  103 
Supp.  1078;  Miller's  Mut.  Casualty  Co.  v.  Hoover  et.  al., — Tex.  Civ.  App. — , 
216  S.  W.  475,  5  W.  C.  L.  J.  325. 

93.  Head  v.  Fidelity  and  Deposit  Co.,  1  Cal.  Ind.  Ace.  Com.  (Part  II) 
451. 

94.  Bowne  v.  S.  W.  Bowne  Co.,  —  N.  Y.  App.  Div.  — ,  116  N.  E.  364,  B  1 
W.  C.  L.  J.  1183;    Millers'  Indemnity  Underwriters  v.  Cook,  —  Tex.  Civ. 
App.  —  229  S.  W.  598,  Section  9  West  Virginia  Act  Managers,  Assistant. 
Managers,  Assistant  Superintendents  excluded. 

95.  Report  of  Nevada  Ind.  Com.  July  1,  1913  to  Dec.  31,  1914,  p.  26. 
96.     Taylor   v.  The  New  York   Supply  Co.,    1  Conn.  Comp.    Dec.  182. 

97.  Skidmore   v.  Brown,  2  Cal.  Ind.  Ace.  Com.    493. 

98.  Gurnett  v.  L.  P.  Ross  Co.,  167  N.  Y.  Supp.  1102,  181  App.  Div.  910. 
Brown  v.  Ind.  Ace.  Comm.  174  Cal.  457,  163  Pac.  664. 

99.  Chandler  et.  al.  v.  J.  L.  Lasky  Feature  Play  Co.,  2  Cal.  Ind.  Ace. 
Com.  653,  See  also  Stites  v.  Universal  Film  Co.,  2  Cal.  Ind.  Ace.  Comm. 
653,  12  N.  C.  C.  A.  1033. 

1.     In  re  Humphrey,  227  Mass.  166,  116  N.  E.  412,  15  N.  C.  C.  A.  458. 

102 


WHO  COMES   UNDER  THE   ACT.  §20 

The  president  of  a  corporation,  owning  half  of  the  stock,  in- 
jured while  superintending  a  job,  was  not  an  employee,  where  his 
salary  was  not  considered  in  arriving  at  the  premium  in  taking 
out  a  policy  covering  the  employees.  - 

But  where  the  president  of  a  corporation  was  employed  by  its 
manager  to  work  in  its  coal  yard  at  $2.00  per  day,  was  carried  on 
the  payroll,  and  obeyed  the  manager's  orders,  he  was  an  em- 
ployee.8 

Where  the  superintendent  of  light  lines,  in  a  telephone  con- 
versation with  his  wife,  authorized  her  to  get  some  one  to  fix  a 
break  in  the  lines,  and  mentioned  a  certain  one  to  get,  the  court 
held  thai  the  suggestion  was  merely  advisory,  and  a  different  party 
selected  by  the  wife  was  an  employee  entitling  his  dependents  to 
receive  compensation  for  his  death.4 

One  who,  being  slightly  intoxicated,  was  ordered  to  go  home 
but  returned  to  work  and  was  killed;  was  held  to  be  an  employee 
at  the  time  of  meeting  with  the  fatal  accident.8 

The  president  and  treasurer  of  a  corporation,  who  managed 
and  directed  its  business,  received  a  salary  which  was  included 
in  the  payroll,  and  on  which  premium  was  paid  to  the  insurer, 
was  not  entitled  to  compensation,  where  there  was  no  separate 
statement  added  to  the  payroll  estimating  the  wage  value  of  the 
labor  incidental  to  his  occupation,  as  distinguishable  from  his 
salary  as  an  officer.8 

But  where  it  was  not  shown  that  a  portion  of  the  salary  received 
by  such  officer  was  in  contemplation  of  his  performance  of  manual 
duties  an  award  cannot  stand.7 

2.  Cashman's  Case,  230  Mass.  600,  120  N.  E.  78,  2  W.  C.  L.  J.  637. 

3.  Dewy  v.  Dewy  Fuel  Co.,  —  Mich.  —  178  N.  W.  36,  6  W.  C.  L.  J.  330. 

4.  American  Bridge  Co.  v.  Funk  Ind.  Comm.,  —  Iowa  — ,  173  N.  W.  119, 
4  W.  C.  L.  J.  374. 

5.  Heist   v.   Wisconsin-Minnesota   Light   and    Power   Co.,  -  -   Wis.  — , 
179  N.  W.  683,  6  W.  C.  L.  J.  728. 

6.  Skouitchi  v.  Chic  Cloak  &  Suit  Co.,  183  N.  Y.  S.  321,  (1920).  6  W.  C. 
L.  J.    492,  affd.  1921,    130  N.  E.    229;   Hubbs  v.    Addison  Elect.   Light  & 
Power  Co.,  —  N.  Y.  App.  — ,  (1921).  130  N.  E.  302. 

7.  Kolpien  v.  O'Donnell  Lbr.  Co.,  —  N.  Y.  App.  — ,  (1921),  130  N.  E. 
103. 

103 


§20  WORKMEN'S  COMPENSATION  LAWS. 

A  shot  firer,  selected  by  the  miners  themselves  from  whose  wages 
a  small  amount  was  deducted  and  paid  into  the  union  which 
paid  the  firer,  though  these  provisions  were  not  considered  when 
the  arrangement  of  hiring  was  made,  was  held  to  be  an  employee 
of  the  mine,  where  the  company  agreed  with  its  miners  that  they 
might  select,  supervise,  and  discharge  the  shot  firer.8 

One  engaged  to  do  a  specific  job,  over  which  the  employer  re- 
tains no  right  of  control,  is  not  an  employee.9 

A  taxi  driver,  allowed  to  retain  25  per  cent  of  the  amount 
earned,  accounting  to  the  owner  of  the  taxi  for  the  remainder, 
is  a  bailee  and  not  an  employee.10 

A  substitute  is  not  an  employee  entitled  to  the  protection  of 
the  act  unless  the  one  he  substituted  for  was  within  the  act.11  Nor 
are  partners  employees.12 

A  minor  child  working  for  his  father  is  not  an  employee  within 
the  meaning  of  the  California  Act,  where  there  has  not  been  an 
actual  emancipation  of  the  child.13  See  section  14,  ante. 

One  drafted  into  the  army,  and  sent  as  a  member  of  a  military 
company  to  work  with  civilian  employees  of  a  logging  company 
operating  for  the  government,  is  within  the  protection  of  the 
act.14 

Under  the  Vermont  act  an  employee  who  receives  over  $2000 
a  year,  under  a  contract  to  continue  for  a  period  of  a  year  or 
longer  at  a  determined  or  determinable  wage  amounting  to  more 
than  $2000  a  year  is  excluded  from  the  benefits  of  the  act.15 

8.  In  re  Duncan,  —  Ind.  App.  — ,  (1920),  127  N.  E.  289,  6  W.  C.  L.  J. 
148;  Bidwell  Coal  Co.  v.  Davidson,  —  Iowa  — ,  174  N.  W.  592,  5  W.  C. 
L.  J.  71. 

9.  Roberts  v.  Indus.  Comm.,  —  Cal.  — ,  (1921),  197  Pac.  978. 

10.  Rockefeller  v.  Indus.  Comm.,  —  Utah  — ,  (1921),  197  Pac.  1038. 

11.  Same. 

12.  Same. 

13.  Aetna  Life  Ins.  Co.  v.  Indus.  Ace.  Comm.,  —  Cal.  — ,  165  Pac.  15, 
A   1  W.  C.  L.  J.  111. 

14.  Rector  v.  Cherry  Valley  Timber  Co.,  —  Wash.  — ,  (1921),  169  Pac. 
653. 

15.  Kelly's  Dependents  v.  Hoosac  Lbr.  Co.,  —  Vt.  — ,  (1921),  113  Atl. 
818.    North  Dakota  Act  amended  1921,  §   8,  $2400. 

104 


WHO  COMES  UNDER  THE  ACT.  §21 

§  21.  Who  are  Employees.  (Cont'd) — It  has  been  held  that 
a  nurse  is  the  employee  of  the  hospital  in  which  she  works,  even 
though  the  hospital  makes  a  special  charge  to  the  patient  for  the 
nurse,  and  only  pays  that  amount  to  the  nurse  when  it  has  been 
paid  by  the  patient:18  that  neither  a  professional  nurse  nor  a 
physician  is  an  employee  under  the  Iowa  and  British  acts;17  that 
chorus  girls,  vaudeville  performers  and  professional  football  play- 
ers may  be  employees;18  that  a  superintendent  of  construction, 
having  peculiar  skill  and  knowledge  as  an  inventor  of  an  appa- 
ratus in  use,  is  allowed  great  liberty  of  action  as  to  purchase  of 
materials  and  manner  of  construction,  does  not  necessarily  indi- 
cate that  lack  of  control  on  the  part  of  his  employer  which  would 
make  the  superintendent  an  independent  contractor  rather  than 
an  employee19  That  where  an  agent  of  a  company  employed 
others  to  assist  him  in  making  sales,  deliveries  and  collections, 
invested  some  of  his  own  capital  in  the  business,  and  was  under 
no  supervision  or  direction  of  his  principals,  he  was  not  an  em- 
ployee;20 that  a  traveling  salesman,  selling  goods  for  the  defend- 
ant, receiving  half  the  profits  for  his  work,  paying  his  own  ex- 
penses and  being  forbidden  to  solicit  regular  customers  of  the 
company,  was  an  employee  ;21  that  the  fact  that  a  workman  under- 
takes to  do  a  special  job  with  his  own  tools  and  materials,  does  not 
of  itself  prevent  him  from  being  an  employee ;"  that  the  manager 
of  defendant's  business,  who  had  no  agreement  as  to  the  amount 
of  his  wages,  but  drew  large  sums  from  time  to  time,  was  an 
employee;28  that  an  employee  who  was  employed  for  fixed  hours 

16.  Williamson  v.  St.  Catherine's  Hospital,  2  Cal.  Ind.  Ace.  Com.  430, 
11  N.  C.  C.  A.  497. 

17.  Leg.  Op.  la.  Ind.  Cora.    (1915),  14;   Murphy  v.  Enniscarthy  Board 
of  Guardians,  2  B.  W.  C.  C.  291,  C.  A. 

18.  Gaiety  Theatre  Co.  v.  Mary  Rockwell,  1  Cal.  Ind.  Ace.  Com.  (Part 
1)  111;  Howard  v.  Republic  THeatre,  2  Cal.  I.  A.  C.  Dec.  514;  Walker  v. 
Crystal  Palace  Football  Club,  3  B.  W.   C.   C.  53.  C.  A. 

19.  Turner  v.  Oil  Pumping  &  Gasoline  Co.,  2  Cal.  I.  A.  C.  Dec.  496. 

20.  Fineblum  v.  Singer  Sewing  Machine  Co.,  1  Conn.  Comp.  Dec.  126. 

21.  Reed   v.  Booth  &    Platt  Co.,  1    Conn.  Comp.   Dec.  121;    Brown  v. 
Indus.  Comm.  —  Cal.  — ,  163  Pac.  664,  A  1  W.  C.  L.  J.  119. 

22.  In  re  Rhienwald   168  App.  Div.  425,  153  N.  Y.  Supp.  598. 

23.  Howard  v.   George  Howard    Inc.,  The   Bull.   N.  Y.    Vol.  1,  No.  11, 
P.  14. 

105 


§21  WORKMEN'S  COMPENSATION  LAWS. 

and  at  a  specified  salary,  but  was  allowed  a  commission  for  new 
business  obtained  after  hours  was  an  employee  regardless  of  which 
work  he  was  doing;24  that  where  a  claimant  had  a  contract  as 
supervisor  of  defendant's  casting  department  and  spent  half  his 
time  travelling  in  the  interest  of  the  company,  of  which  he  was 
director  and  treasurer,  though  he  received  no  salary  for  the  latter 
duties,  this  did  not  preclude  him  from  being  an  employee  ;25  that 
convicts  are  not  engaged  in  any  contract  employment;26  under 
the  British  act  one  is  not  ordinarily  considered  an  employee,  when 
he  is  paid  for  his  services  by  a  share  in  the  profits,27  but  it  has 
been  held  otherwise  under  some  American  acts.28 

It  has  been  held  that  where  a  steel  tester  making  £2  per  week 
obtained  an  agreement  with  his  employers,  which  allowed  him  to 
live,  rent  free,  in  a  cottage  nearby  in  return  for  which  he  was 
to  see  to  the  cleaning  of  the  offices,  his  daughter  doing  the  work, 
and  he  was  killed  by  gas,  while  asleep  in  his  bedroom,  there  was 
no  contract  of  service  and  deceased  was  not  an  employee  ;29  that 
one  who  visited  defendant's  office  seeking  employment  and  was 
directed  by  defendant  to  go  to  the  defendants  logging  camp,  on 
a  logging  train  and  was  injured  on  the  way,  was  not  an  employee  ;3rt 
that  the  relation  of  employer  and  employee  is  not  limited  to  ex- 
press contracts;31  that  the  rights  of  employees  are  not  affected 

24.  Cameron  v.  Pillsbury,  173  Cal.  83,  159  Pac.  149. 

25.  Welton  v.  Waterbury  Rolling  Mill,  1  Conn.  Comp.  Dec.  78;  Eagle- 
son  v.  Harry  G.  Preston  Co.,  —  Perm.  — ,  109  Atl.  154,  5  W.  C.  L.  J.  744. 

26.  Ryan  v.    Metropolitan    Chair  Co.,    1  Conn.  Comp.    Dec.  37;    (Wk. 
Comp.  Act.  Wash.  17),  Op.  Atty.  Gen.  Sept.  17,  1913. 

27.  Admiral  Fishing  Co.     Ltd.  v.    Robinson,  3  B.   W.  C.    C.  247  C.  A.; 
Tindall  v.   Great   Northern   Steam  Fishing  Co.,  6  B.   W.  C.  C.   480  H.  L..; 
Boon  v.  Quance,  102  L.  T.  443,  3  B.  W.  C.  C.  106  C.  A;  Burman  v.  Zodiac 
Steam  Fishing  Co.,   7  B.   W.  C.   C.   767  C.  A.;    Smith  v.  General  Motor 
Cab    Co.,   Ltd.,    (1911),  A.   C.   188;    Daggett    v.   Waterloo   Taxicab    Co., 
Ltd.,  3  B.  W.  C.  C.  371  C.  A. 

28.  Reed  v.  Booth  &  Platt  Co.,  1  Conn.  Comp.  Dec.  121,  Op.  Sp.  Counsel 
to  la.  Ind.  Com.,  (1915),  p.  3. 

29.  Wray  v.  Taylor  Bros.    &  Co.,  Ltd.  6    B.  W.  C.    C.  529,  C.  A. 

30.  Susznik  v.  Alger  Logging  Co.,  76  Or.  189,  147  Pac.  922.. 

31.  Reitmeyer  v.  Core  Bros.  &  Co.,  —  Pa.  — ,  107  Atl.  739,  4  W.  C.  L. 
J.  644. 

106 


WHO  COMES  UNDER  THE  ACT.  §22 

by  the  invalidity  of  their  employer's  subcontract;82  that  one  in- 
jured while  on  the  premises  and  before  the  contract  of  employ- 
ment was  entered  into  was  not  an  employee.88 

§  22.  Employment  Through  Agents  and  Assistants. — The 
agent  who  with  authority  express  or  implied,  employs  help  for 
the  benefit  of  his  principal's  business,  thereby  creates  the  relation 
of  employer  and  employee  between  such  help  and  his  principal.84 
So  it  has  been  held  that  where  a  driver,  employed  to  solicit  sales 
of  beer  and  make  delivery,  was  permitted  to  employ  helpers,  a 
helper  who  was  injured  while  in  the  performance  of  his  duty  was 
entitled  to  compensation  from  the  brewery;35  that  an  expert, 
hired  by  a  factory  owner  to  supervise  the  installation  of  machinery, 
who  hired  assistants,  paid  by  the  owner,  one  of  such  assistants 
being  injured  while  so  engaged  was  entitled  to  compensation  from 
the  factory  owner;36  that  workmen  hired  by  an  agent  of  a  com- 

32.  Wauson  Lumber  Co.  v.  Industrial  Acci.  Comm.,  166  Wis.  204,  164  N. 
W.  836,  1  W.  C.  L.  J.  140. 

33.  Brassard  v.  Delaware  &  H.  Co.,  186  App.  Div.  647,  175  N.  Y.  S. 
359,  4  W.  C.  L.  J.  130,  18  N.  C.  C.  A.  912;    California  Highway  Comm.  v. 
Indus.  Comm.,  —  Cal.  — ,  181  Pac.  112,  4  W.  C.  L.  J.  150. 

34.  Paul  v.  Nikkei,  1  Cal.  I.  A.  C.  Dec.  362;  Dolan  v.  Judson,  1  Conn. 
Comp.  Dec.  648;    Gallagher  v.  Federal  Transfer  Co.,  and  Maryland  Gas. 
ualty  Co.,  1  Cal.  Ind.  Ace.  Com.  (Part  II),  39;    Paduca  Box  &  Basket  Co. 
v.  Parker,  136  S.  W.  1012,  143  Ky.  607,  43  L.  R.  A.  (N.  S.)  179  111.  Cent. 
R.  Co.  v.  Timmons,  100  S.  W.  337;    30  Ky.  Law  Rep.  1155;    Yazoo  ft  M.  V. 
R.  Co.  v.  Slaughter,  45  So.  873;  92  Miss.  289;  Wells  v.  Ky.  Distillers  & 
Warehouse  Co.,  138  S.  W.  278,  144   Ky.  438;     Tucker  v.   Buffalo  Cotton 
Mils,  57  S.  E.  626,  75  S.  C.  539;    Peterson  v.  Pellasco.  2  Cal.  Ind.  Ace.  Com. 
199,  11  N.  C.  C.  A.  377;  Tillburg  v.  McCarthy,  166  N.  Y.  S.  878,  179  App. 
Div.  593;    15  N.  C.  C.  A.  449;    State  ex  rel.  Menaber  v.  Dist.  Court  of 
Ramsey  Co.,  138  Minn.  416,  165  N.  W.  268;  Yolo  Water  &  Power  Co.  v. 
Ind.  Ace.  Comm.,  35  Cal.  14,  168  Pac.  1146,  15  N.  C.  C.  A.  452,  State  ex  rel. 
Nienabar  v.  Dist.  Ct.  of  Ramsey  Co.  et  al.,  138  Minn.  416,  165  N.  W.  268,  1 
W.  C.  L.  J.  642. 

35.  Sandon  v.  Kendall  —  Mass.,  — ,  123  N.  E.  847,  4  W.  C.  L.  J.  501; 
Schmidt  v.  Wm.  Pfeifer  Berlin  Weiss  Beer  Brewing  Co.,  Bui.  No.  1,  111.  p. 
118;    Vance  v.  Peter  A.  Frazee  ft  Co.,  166  N.  Y.  Supp.,  117,  179  App.  Div. 
963. 

36.  McXally  v.  Diamond  Mills  Paper  Co.,  The  Bui.  N.  Y.  Vol.  1.  No.  11, 
p.  12,  Opitz  v.  Hoertz,  194  Mich.  626,  161  N.  W.  866. 

107 


§22  WORKMEN'S  COMPENSATION  LAWS. 

pany,  which  took  over  the  logging  work  of  an  independent  con- 
tractor, became  the  employees  of  the  company;37  that  when  a 
town's  agent  builds  a  bridge  for  the  town  at  a  stipulated  price 
per  day  for  himself  and  his  workmen,  he  makes  such  workmen 
the  employees  of  the  town  ;38  that  a  railroad  company  is  not 
liable  for  damages  to  one  employed  by  a  conductor  when  he 
has  a  full  crew,  and  there  is  no  emergency;39  that  the  son 
of  a  town  marshal  injured  while  operating  a  pump  at  his 
father's  request,  when  the  latter  had  no  express  authority  to 
hire  an  assistant,  was  not  entitled  to  compensation  from  the 
town  -4°  that  one  employed  to  do  a  specific  piece  of  work  cannot 
make  those  whom  he  may  employ  to  help  him,  the  employees  of 
his  employer  ;41  that  a  public  school  is  the  employer  of  a  window 
washer  hired  twice  a  year  by  its  janitor  and  paid  by  the  janitor 
out  of  his  own  wages  without  authority  from  the  school  board, 
though  not  without  its  knowledge;42  that  one  who  is  acting  as 
the  agent  for  another,  and  hires  a  man  without  disclosing  his 
principal  may  become  liable  to  such  employee  for  compen- 
sation;43 that  a  foreman  in  full  charge  of  all  the  employees 
in  a  room,  is  an  "agent,"  whose  knowledge  of  an  accident 
makes  written  notice  unnecessary:44  that  where  a  substitute,  un- 
officially appointed,  sustains  an  injury,  he  is  not  entitled  to  com- 
pensation ;4B  that  where  the  father  of  the  owner  of  a  building  had 
authority  to  look  after  small  matters  about  the  building  and  there 

37.  Freeman  v.  Dells  Paper  &  Pulp  Co.,  150  Wis.  93,  135  N.  W.  540. 

38.  Peabody  v.  Town  of  Superior,  Bui.  Wis.  Ind.  Com.  Vol.  1,  p.  99, 
Village  of  West  Salem  v.  Ind.  Com.,  162  Wis.  57,  155  N.  W.  929. 

39.  Clarke  v.  Louisville  &  N.  R.  Co.,  Ill  S.  W.  344;   33  Ky.  Law  Rep.  797; 
Vassar  v.  Atlantic  Coast  Line  R.  Co.,  54  S.  E.  849;    142  N.  C.  68;    7  L.  R. 
A.  (N.  S.)  950;    Yazoo  &  M.  V.  R.  Co.  v.  Stansberry,  53  So.  389;    97  Miss. 
831;   Wagon  v.  Minneapolis  &  St.  L.  R.  A.  Co.,  80  Minn.  92;    82  N.  W.  1107; 
But  see  Paul  v.  Peter  Nikkei,  1  Cal.  Ind.  Ace.  Com.  (Part  II)  648,  11  N.  C. 
C.  A.  376;  McCutcheon  v.  Marinette,  Tomahawk  &  Western  R.  Co.,  Fourth 
Annual  Report   (1915),  Wis.  Ind.  Com.  13. 

40.  Noonan  v.  City  of  Perris,  2  Cal.  Ind.  Ace.  Com.  109. 

41.  Kackel  v.  Serviss,  180  App.  Div.  54,  167  N.  Y.  Supp.  348. 

42.  Sabini   v.   Loura    (1916),   3   Cal.    Ind.   Ace.   Com.    354. 

43.  Scott  v.  O.  A.  Hankinson  &  Co.,  —  Mich.  — ,  171  N.  W.  489. 

44.  In  re  Simmons,  —  Me.  — ,  103  Atl.  68,  1  W.  C.  L.  J.  984. 

45.  In  re  Chas.  C.  Logan,  2nd  A.  R.  U.  S.  C.  C.  244. 
108 


WHO  COMES  UNDER  THE  ACT.  §23 

was  110  clear  line  drawn  wherein  his  authority  would  cease,  his 
employment  of  a  contractor  to  clean  the  building  was  held  to  be 
sufficiently  authorized  so  as  to  hold  the  son,  even  though  as  princi- 
pal he  was  not  disclosed.46 

§  23.  Employee  Doing  Incidental  Work. — Some  of  the  acts 
provide  that  if  employments  are  incidental  to  the  operation  of  the 
usual  business  of  the  employer,  they  are  subject  to  the  act.  But 
regardless  of  whether  it  is  covered  by  the  act  it  often  becomes  a 
pertinent  question  whether  the  work  in  which  the  employee  was 
injured  was  incidental  to  the  main  purpose  of  the  employer's  busi- 
ness and  therefore  included  by  the  act,  or  is  incidental  to  a  part 
of  one  of  the  employments  expressly  excluded  by  the  act. 

It  has  been  held  in  Illinois,  that  the  widow  of  a  workman  killed 
while  blasting  stumps  on  a  township  road,  was  not  entitled  to 
compensation  because  such  work  was  incidental  employment  in 
connection  with  the  repair  of  the  road  (work  not  included  under 
the  act),  and  the  workman  was  not  an  employee  within  the  act, 
which  also  excludes  employments  casual  or  not  in  the  usual  course 
of  the  employer's  business,47  because  blasting,  while  one  of  the 
hazardous  employments  included  by  the  act,  was  in  this  case  but 
casual  and  therefore  excluded  from  the  act. 

The  court  said:  "The  work  of  dynamiting  the  stumps  was  a 
mere  casual  or  incidental  employment  in  connection  with  the  mat- 
ter of  grading  and  repairing  the  road,  and  the  evidence  does  not 
show  that  the  road  district  had  ever  before  used  dynamite  in  con- 
nection with  road  grading  at  any  time,  and  the  evidence  clearly 
shows  that  the  work  would  only  continue  for  a  few  hours  at  most. 
There  was  no  expectancy,  so  far  as  the  evidence  shows,  that  dyna- 
mite would  ever  be  again  used  by  the  district  in  its  road  work. 
In  the  case  of  Aurora  Brewing  Co.  vs.  Ind.  Bd.,  277  111.  142, 

46.  Davis  v.  Indus.  Comm.  —  111.  — ,  130  N.  E.  333   (1921). 

47.  McLaughln  v.  Industrial  Board,  281  111.  100,  117  N.  E.  819;  1  W.  C. 
L.  J.  504;  Mattoon  Clear  Water  Co.  v.   Ind.  Com'n.   et  al..   291  111.  487. 
126  N.  E.  168.  5  W.  C.  L.  J.  671;    Contra,  see  Lanagan  v.  Saugerties,  180 
App.  Div.  227,   167  N.  Y.  Supp.  664.  1  W.  C.  L.  J.  676;    State  ex  rel.  City  of 
Northfleld  v.  Disk  Court  of  Rice  Co.,  131  Minn.  352,  155  N.  W.  103,  11 
N.  C.  C.  A.   366. 

109 


§23  WORKMEN'S  COMPENSATION  LAWS. 

115  N.  E.  207,  "this  court  held  that  the  Legislature  never  intended 
an  employee  who  was  engaged  for  one  job  lasting  only  three  or 
four  days  to  be  within  the  terms  of  the  Workmen's  Compensation 
Act,  even  though  the  employee  had  been  employed  at  irregular 
intervals  during  several  previous  years -to  perform  similar  work." 

In  a  California  case,  where  workmen  were  blasting  stumps  to 
convert  a  dairy  farm  to  a  fruit  farm  they  were  held  to  be  engaged 
in  work  incidental  to  agricultural  work  and  therefore  excluded 
from  the  benefits  of  the  act.  In  other  words  the  blasting  of  stumps 
was  considered  part  of  the  usual  business  of  the  farmer.48 

The  manufacture  of  drugs  is  one  of  the  hazardous  employ- 
ments, which  alone  are  covered  by  the  New  York  Act.  A  handy 
man,  employed  by  such  establishment,  who  also  acted  as  porter 
and  elevator  man  had  occasion  to  reach  into  the  elevator  shaft 
for  a  board,  in  so  doing  he  lost  his  balance,  fell  into  the  shaft 
and  was  killed.  On  the  question  of  whether  this  incidental  work 
was  properly  a  part  of  the  usual  course  of  the  employer's  busi- 
ness the  court  said:  "We  feel  perfectly  secure,  however,  in 
holding  that  where,  as  in  this  case,  an  employee  is  injured  while 
performing  an  act  which  is  fairly  incidental  to  the  prosecution 
of  a  business  and  appropriate  in  carrying  it  forward  and  pro- 
viding for  its  needs,  he  or  his  dependents  are  not  to  be  barred 
from  recovery  because  such  act  is  not  a  step  wholly  embraced 
in  the  practise  and  characteristic  process  or  operation  which 
has  been  made  the  basis  of  the  group  in  which  employment  is 
claimed."49 

A  carpenter  fell  overboard,  and  was  injured,  while  repairing 
a  boat  owned  by  the  hay  and  grain  merchants  by  whom  he  was 
employed.  He  was  awarded  compensation.50  An  employee  of  a 

48.     Martin  v.  Russian  River  Fruit  &  Land  Co.,  1  Gal.  Ind.  Ace.  Com. 
(Part  II)  18;   Reily  v.  Newhall  Lumber  Co.,  3  Cal.  Ind.  Ace.  Com.  208. 
-49.    Matter  of  Larsen  v.  Paine  Drug  Co.,  218  N.  Y.  252,  112  N.  E.  725, 
Aff'g    169  App.  Div.  838,  155  Supp.  759,  11  N.  C.  C.  A.  327;  Kimbol  v.  In- 
dustrial Ace.  Comm.,  173  Cal.  351,  160  Pac.  150,  L.  R.  A.  1917B,  595,  Ann. 
Cas.  1917E,  312;    Lanagan  v.  Town  of  Saugerties,  180  N.  Y.  App.  227,  167 
N.  Y.  S.  654,  1  W.  C.  L.  J.  675. 

50.    Chertkoff  v.    Schaeffer  &   Son,   5   N.   Y.   St.   Dep.   423;     Fields   v. 
Wright  et  al.  5  Cal.  Ind.  Ace.  Com.  224. 
110 


WHO  COMES  UNDER  THE  ACT.  §23 

garbage  reduction  company  drove  one  of  its  collecting  wagons, 
but  while  doing  some  extra  work  climbed  on  the  roof  of  a  build- 
ing to  pull  down  a  rope  used  to  hoist  fertilizer  material  he  was 
helping  to  load,  he  fell  through  a  skylight  and  was  killed.  It 
was  held  that  he  was  entitled  to  compensation,  as  the  injury  was 
received  in  the  course  of  his  employment.51  Where  a  chauffeur, 
waiting  in  a  garage  for  his  master's  machine  to  be  repaired, 
voluntarily  and  to  no  useful  purpose  cranks  the  engine  and  is 
injured,  all  control  and  responsibility  for  the  work  being  out  of 
his  hands,  it  was  held  that  what  he  did  was  not  at  the  time  in- 
cidental to  his  employment,  and  he  was  not  entitled  to  compen- 
sation.52 

In  an  Illinois  case  where  a  corporation  was  engaged  in  general 
contracting  work,  including  street  paving,  and  contracted  with 
a  teaming  company  to  haul  stone,  an  award  against  the  corpora- 
tion on  account  of  the  accidental  death  of  a  teamster  was  affirm- 
ed. The  court  said :  The  enterprise  cannot  be  considered  a  mere 
incident  to  the  general  business  in  which  plaintiff  in  error  was 
engaged.  It  was  the  business  or  enterprise  itself.  *  *•  *  If  it  was 
only  the  hauling  of  one  load  of  crushed  stone  by  a  farmer  or 
business  man  who  was  not  engaged  in  construction  or  contract- 
ing work  generally,  undoubtedly  then  the  proper  conclusion 
would  be  to  hold  the  hauling  of  such  single  load  a  mere  incident 
to  the  main  business."68 

It  would  appear  therefore  that  if  the  work  being  done  may 
properly  be  within  the  ordinary  expectation  or  contemplation 
of  the  parties  as  being  necessary  or  proper  for  the  employee  to 
do,  to  aid  in  carrying  out  either  directly  or  indirectly  the  main 
purpose  or  business  of  the  employer,  even  though  the  employee 
steps  aside  from  his  usual  work  to  do  this  unusual  or  isolated 
act  or  work,  he  should  nevertheless  receive  compensation  when 
injured  in  such  work." 

51.  Ross  v.  Genesee  Reduction  Co.,  180  App.  Div.  846,  168  N.  Y.  Supp. 
61,  1  W.  C.  L.  J.  683. 

62.     De  Long  v.  Krebs,  1  Cal.  I.  A.  C.  Dec.  592. 

68. .  Parker-Washington  Co.  v.  Industrial  Board  of  111.,  274  HI.  498,  113 
N.  E.  976.  14  N.  C.  C.  A.  1079. 

64.  Wendt  v.  Industrial  Ins.  Comm.  of  Wash.,  80  Wash.  111.  141  Pac. 

Ill 


§23  WORKMEN'S  COMPENSATION  LAWS. 

In  another  Illinois  case  a  company  was  engaged  in  the  manu- 
facture and  sale  of  ice,  and  in  the  sale  of  coal,  coke  and  wood, 
and  also  maintained  a  horse  barn  where  it  kept  horses  which 
it  used  in  connection  with  its  business.  The  deceased,  a  teamster 
employed  by  the  company  to  deliver  ice  and  coal,  was  kicked 
by  a  horse  and  killed  while  feeding  it.  It  was  contended  that  the 
deceased  was  not  engaged  in  that  part  of  the  company's  business 
which  could  properly  be  termed  extra  hazardous  and  therefore 
was  not  under  the  act.  The  court  said:  "Here  the  duties  of  the 
deceased  required  him  to  work  in  and  around  the  plant  where 
the  ice  was  manufactured,  and  included  the  loading  of  ice  and 
the  care  of  the  horses  in  a  large  stable  on  the  premises  of  plain- 
tiff in  error  immediately  adjacent  to  the  main  ice  plant.  We 
cannot  see  how  it  can  fairly  be  held  that  the  employment  in 
which  the  deceased  was  engaged  was  not  a  part  of  plaintiff  in 
error's  business  or  occupation  of  manufacturing  and  selling  ice. 
*  *  *  The  men  in  the  building  of  plaintiff  in  error  where  the 
machinery  was  located  and  the  ice  manufactured  were  certainly 
within  the  act.  The  workmen  around  the  building  and  caring 
for  the  property  were  within  the  act.  Those  whose  duties  took 
them  to  the  plant  to  take  away  the  product  were  within  the  act, 
and  we  can  reach  no  other  conclusion  than  that  the  duties  of  the 
deceased  were  of  such  a  nature,  so  related  to  and  connected  with 
the  occupation  of  plaintiff  in  error  as  to  require  that  plaintiff  in 
error,  under  the  provisions  of  the  workmen's  compensation  act, 
shall  be  held  liable  for  the  injury."55 

Section  1,  of  the  New  Hampshire  Act,  provides  that  it  shall 
apply  to  "work  in  any  shop,  mill,  factory  or  other  place  on,  in 
connection  with  or  in  proximity  to,  hoisting  apparatus  or  machin- 
ery propelled  or  operated  by  steam  or  other  machanical  power," 
etc.  The  plaintiff  was  injured  in  constructing  a  pulp  carrier  a 
mile  from  the  defendant's  mills.  In  declaring  that  the  plaintiff 

311,  5  N.  C.  C.  A.  790;  Replogle  v.  Seattle  School  Dist.  No.  1,  84  Wash. 
581,  147  Pac.  196,  8  N.  C.  C.  A.  442;  But  see  Shafer  v.  Parke,  Davis  Co.,  192 
Mich.  577,  159  N.  W.  304,  14  N.  C.  C.  A.  1077. 

55.  Surburban  Ice  Co.  v.  Industrial  Board  of  111.,  274  111.  630,  113.N.  E. 
979,  14  N.  C.  C.  A.  1080. 

112 


WHO  COMES  UNDER  THE  ACT.  §24 

did  not  come  under  the  act  the  court  said:  "The  place  where 
the  pulp  carrier  was  being  erected  was  in  no  way  appurtenant 
to  the  defendants'  mills,  and  in  no  sense  a  part  of  their  manu- 
facturing plant.  To  hold  that  building  a  pulp  carrier  for  the  de- 
fendants more  than  a  mile  from  their  mills  is  working  in  their 
mills  within  the  meaning  of  the  statute  would  lead  to  results 
never  contemplated  by  the  legislature.  Under  such  an  inter- 
pretation of  the  statute  those  engaged  for  the  defendants  in 
felling  trees,  hauling  them  from  the  forest  many  miles  from  their 
mills  could  be  said  to  be  working  in  their  mills."56 

A  Country  Club  was  held  liable  to  pay  compensation  for  the 
death  of  an  employee  who  was  killed  while  felling  trees  on  land 
belonging  to  the  Club,  and  from  the  sale  of  which  the  Club  de- 
rived a  profit,  although  the  Club  was  organized  for  pleasure  and 
not  for  profit." 

§  24.  Loaned  Employees. — The  common-law  principle88  that 
an  employee  lent  to  a  special  employer,  and  who  assents  to  the 
change,  becomes  a  servant  of  the  employer  to  whom  he  is  loaned, 
applies  to  cases  arising  under  the  workmen's  compensation  act.59 

In  a  recent  Wisconsin  Case  the  Court  said:  "When  a  work- 
man is  transferred  with  his  own  consent,  by  an  employer  to  a 
special  employer,  the  latter  may  become  liable  to  pay  an  indemni- 
ty when  he  is  in  the  exclusive  control  and  management  of  the 
work  in  which  the  injury  is  received.60  But  where  the  employee 

56.  King  v.  Berlin  Mills  Co.,— N.  H— ,  99  Atl.  289  (1916)  14  N.  C.  C  A. 
1082. 

57.  Uhl  v.  Hartwood  Club,  177  App.  Div.  41,  163  N.  Y.  Supp.  744.  Aff'd 
221  N.  Y.  588,  116  N.  E.  1000. 

58.  Wyman  v.  Berry,  75  Atl.  123,  106  Me.  43;    Wise  v.  Lillie  Sugar  Ap- 
paratus Mfg.  Co.,  113  Pac.  403,  84  Kan.  86;    W.  N.  Neill  Co.  v.  Rumpf,  147 
S.  W.  910,  148   Ky.  810;  Wolfe  v.  Mosler  Safe  Co..  139  App.  Div.  848.  124 
Supp.  541;    Bowie  v.  Coffin  Valve  Co.,  86  N.  E.  814.  200  Mass.  571. 

59.  Scribner's  Case.  —  Mass.  — ,  120  N.  E.  350,  2  W.  C.  L.  J.  905;    Bayer 
v.  Bayer,  —  Mich.  — ,  158  N.  W.  109;    Burns  v.  Jackson,  200  Pac.  80. 

60.  Cayll  v.  Indus.  Comm.,  —  Wis.  — ,  (1920),  179  N.  W.  771,  7  W.  C.  L. 
J.  165;    Schweitzer  v.  Thompson  Morrie  Co.  of  N.  J.,  —  N.  Y.  App.  — ,  127 
N.  E.  904,  6  W.  C.  L.  J.  366. 

113 
W.  C.— 8 


§24  WORKMEN'S  COMPENSATION  LAWS. 

had  no  knowledge  of  the  fact  that  he  had  been  loaned  the  origi- 
nal employer  was  liable.61 

Where  a  miner  loaned  to  another  company  to  assist  in  ex- 
tinguishing a  fire,  and  while  so  engaged  was  subject  to  the  con- 
trol of  the  latter  company,  it  became  his  employer,  even  though 
his  wages  were  not  fixed,  so  that  a  claim  for  compensation  was 
properly  awarded  against  it.62 

An  employer  cannot  transfer  his  employee  to  the  employ  of 
another  employer  so  as  to  constitute  the  employee  a  special  em- 
ployee of  the  latter,  without  the  consent  of  the  one  transferred, 
with  the  understanding  that  he  is  submitting  himself  to  the  con- 
trol of  a  new  master.  So  where  a  detective  bureau  furnished 
guards  to  a  railroad  company  during  a  strike,  an  employee  of  the 
bureau,  transferred  without  his  consenting  to  become  an  em- 
ployee of  the  railroad  company,  was  not  a  special  employee  of 
the  railroad  within  the  meaning  of  the  compensation  act  so  as 
to  preclude  him  from  bringing  a  common-law  action  for  negli- 
gence of  the  railroad  company.63 

A  person  to  whom  an  employee  is  loaned  temporarily  becomes 
the  employer  even  though  the  general  employer  may  have  an 
interest  in  the  special  work.64 

But  there  is  a  presumption  that,  in  the  management  of  a 
machine  or  appliance  belonging  to  the  general  employer,  the 
loaned  employee  is  an  employee  of  the  general  employer.65 

In  a  Michigan  case  it  was  held  that  a  manufacturing  company, 
which  was  installing  a  blow  pipe  system  in  another  company's 
plant,  was  the  employer  of  a  man  who  was  under  its  direction 
and  control,  even  though  he  was  paid  by  the  other  company.66 

61.  Inmann  v.  Cochran,  38  N.  J.  L.  J.  304;    Jackson  v.  Erie  Ry.  Co.  86 
N.  J.  L.  550,  91  Atl.  1035,  6  N.  C.  C.  A.  944. 

62.  Tarr  v.  Hecla  Coal  Co.,  —  Pa.  — ,  (1920),  109  Atl.  224,  5  W.  C.  L.  J. 
904;    Kucharuk  v.  McQueen,  221  N.  Y.  607,  117  N.  E.  1073;    De  Noyer 
v.  Cavanaugh  221  N.  Y.  273,  116  N.  E.  992 

63.  Murray  v.  Union  Ry.  Co.  of  New  York  City,  —  N.  Y.  A.  — ,  (1920), 
127  N.  E.  907,  6  W.  C.  L.  J.  365. 

64.  Westover  v.  Hoover,  129  N.  W.  285,  88  Neb.  201,  3  N.  C.  C.  A.  471. 

65.  Emacli's  Case,  232  Mass.  596,  123  N.  E.  86,  4  W.  C.  L.  J.  94;    Modoc 
Co.  v.  Indus.  Comm.,  32  Cal.  App.  548,  163  Pac.  685,  15  N.  C.  C.  A.  280. 

66.  Arnett  v.  Hayes  Wheel  Co.,  201  Mich.  67,  166  N.  W.  957,  1  W.  C.  L. 
J.  1061,  18  N.  C.  C.  A.  916. 

114 


WHO  COMES  UNDEB  TiJE  ACT.  §24 

Where  A  hired  two  men  and  the  following  day  directed  that 
one  work  for  his  father,  the  father  was  liable  for  injury  to  the 
workman  notwithstanding  the  original  hiring  was  done  by  A.07 

It  has  been  held  however  that  a  caddie  for  a  golf  club,  paid 
by  the  member  whom  he  serves,  is  an  employee  of  the  club  and 
not  of  the  member  he  might  be  serving  at  the  time  of  the 
accident.68 

The  unauthorized  exchange  of  jobs  between  two  employees 
will  deprive  them  of  their  right  to  compensation.60  But  where 
the  exchange  is  authorized,  the  injured  employee  may  recover 
from  his  regular  employer.70 

Where  a  partnership  sublet  a  portion  of  their  contract  on  a 
building  to  a  corporation,  and,  for  the  accommodation  of  the 
subcontractor,  hired  a  man,  who  was  never  informed  that  he  was 
in  the  employ  of  the  corporation,  the  employee  when  injured 
may  hold  either  the  partnership  or  the  corporation  for  compen- 
sation.11 

The  owner  of  a  chartered  vessel,  and  not  the  charterer,  is  the 
employer  of  the  captain  of  the  vessel.72 

Where  the  duties  of  an  employee  are  of  a  dual  nature,  in- 
cluding duties  to  his  general  employer  as  well  as  to  his  special 
employer,  and  he  is  injured  while  acting  for  his  general  employer 
he  cannot  claim  compensation  from  his  special  employer  when 
at  the  time  of  the  injury  he  had  departed  from  his  duties  to  the 
special  employer.  So  where  a  teamster  was  injured  while  water- 
ing his  general  employer's  horse,  during  the  time  he  was  under 

67.  Smith  v.  Eichelberger,  176  111.  App.  231.    Consolidated  Tire  Works 
v.  Koechl,  190  111.  145. 

68.  Clareraont   Country  Club  v.  Indus.  Ace.   Comm.,   174  Cal.   395,  163 
Pac.  209,  15  N.  C.  C.  A.  448. 

69.  Sherr  &  Co.  v.  Indus.  A.  C.  —  Cal.  — ,  166  Pac.  318. 

70.  In  re  Maroney,  —  Ind.  App.  — ,  118  N.  E.  134,  15  N.  C.  C.  A.  242. 

71.  Scott  v.  O.  A.  Hankinson  &  Co.,  205  Mich.  358,  171  N.  W.  489,  3 
W.  C.  L.  J.  759,  18  N.  C.  C.  A.  917. 

72.  Norman  v.  Empire  Lighterage  and  Wrecking  Co.,  2  N.  Y.  St.  Dep. 
Rep.  480;  Mackinnon  v.  Miller,  2  B.  W.  C.  C.  64  Ct.  of  Sess.,  46  Scotch  I. 
R.  299. 

115 


§25  WORKMEN'S  COMPENSATION  LAWS. 

the  control  of  the  special  employer,  it  was  held  that  he  must  seek 
compensation  from  his  general  employer.73 

§  25.  Partnership  as  Employer. — Few  questions  arise  in  ref- 
erence to  partnerships  as  employers  under  compensation  laws 
that  cannot  be  decided  by  reference  to  the  general  statutes  and 
decisions,  relating  to  the  law  of  partnership;  though  there  are 
some  questions  relating  to  partnerships  under  compensation  laws 
which  are  not  so  easy  of  determination.  The  question  has  been 
raised  whether  a  member  of  a  partnership  is  its  employee  and 
entitled  to  compensation  when  injured  in  the  course  of  his  em- 
ployment. In  a  California  case  it  was  decided  he  was  not  an  em- 
ployee within  the  meaning  of  the  compensation  act  even  though 
at  the  time  of  his  death  he  was  working  under  an  agreement  with 
the  partnership  firm,  whereby  it  paid  him  a  stipulated  price  per 
day  and  expenses.74  Ordinarily  partners  and  co-adventurers  in 
business  do  not  sustain  the  relation  of  employer  and  employee, 
on  the  theory  that  no  one  can  at  once  be  both.75  Where  the  de- 
ceased was  employed  by  a  partnership,  one  of  whose  members 
was  his  father  with  whom  he  lived,  it  was  held  that  he  was  an 
employee  of  the  partnership  from  which  compensation  might  be 
demanded.76 

It  has  been  held  that  an  employee  who  has  suffered  disability 
cannot  obtain  compensation  from  one  member  of  a  partnership 
on  the  allegation  that  the  individual  defendant  was  the  em- 

73.  Pigeon  v.  Employers  Liab.  Assn.  Corp.,  216  Mass.   51,  102  N.  E. 
932,  4  N.  C.  C.  A.  516. 

74.  Cooper  v.  Industrial  Ace.  Com.  (Gal.),  Mar.  6th,  1918,  171  Pac.  684,  1 
W.  C.  L.  J.  899;  Ellis  v.  Ellis  &  Co.,  92  L.  T.  718;  7  W.  C.  C.  97;  Reinking 
v.  Aetna  Life  Ins.  Co.,  3  Cal.  Ind.  Ace.  Com.  82.    Held  in  Britten  v.  Brit- 
ten et  al.,  5  Cal.  Ace.  Com.  187,  that  where  he  received  wages  irrespec- 
tive of  profits  he  was  an  employee.     But  see  Howard  v.  George  Howard, 
Inc.  (1916),  9  N.   N.    S.  St.   Dep.  Rep.    355. 

75.  Ellis  v.  Ellis  (1905),  1  K.  B.  324,  7  W.  C.  C.  97;  Boon  v.  Quance, 
102  L.  T.  443,  3  B.  W.  C.  C.  106;    In  re  C.  E.  Cooper,  Vol.  1,  No.  7,  Bui. 
Ohio,  Ind.  Com.  p.   180;    Ferranti  v.  Kennedy,  1  Conn.  Comp.  Dec.  196; 
Shaw  v.  D.  F.  Foley,  1  Cal.  Iiid.  Ace.  Com.  (Part  II),  629. 

76.  McNamara  v.  McNamara,  91  Conn.  380,  100  Atl.  31,  A  1  W.  C.  L.  J. 
296,  15  N.  C.  C.  A.  459;    Rogers  v.  Rogers,  —  Ind.  App.  — ,  122  N.  E.  778, 
18  N.  C.  C.  A.  918,  4  W.  C.  L.  J.  58. 

116 


WHO  COMES  UNDER  THE  ACT.  §25 

ployer.77  A  member  of  a  co-partnership  working  under  a  sub- 
contract is  an  independent  contractor,  and  not  an  employee  of 
the  general  contractor.78  A  partnership  contracted  with  a  con- 
tractor to  install  certain  machinery,  and  one  of  the  partners  was 
injured  while  helping  to  unload  machinery  billed  to  the  contrac- 
tor. It  was  held  that  the  partner  was  not  an  employee  of  the 
contractor,79  but  he  was  an  employee  when  he  received  separate 
pay  for  such  work.80 

A  creditor  assumed  the  management  of  the  business  of  a  part- 
nership for  the  purpose  of  securing  himself  and  rehabilitating 
the  firm.  It  was  held  that  the  partnership  and  not  the  creditor 
was  the  employer  of  the  injured  workman.81  The  contrary  was 
held  where  an  assignee  for  the  benefit  of  creditors  who  took  over 
the  business  for  the  purpose  of  winding  it  up  and  distributing 
its  assets  pro  rata  among  all  the  creditors.82 

Where  one  contracted  with  a  partnership  for  the  use  of  a  team 
and  driver  and  the  partnership  sent  one  of  its  members  and  a 
driver,  he  was  held  to  be  an  independent  contractor  and  not  an 
employee  of  the  one  who  contracted  for  his  services.88 

77.  Dupre  v.  Coleman,   143  La.  69,  78  So.  241,  1  W.  C.  L.  J.  982.  But  see 
Coady  v.  Igo,  91  Conn.  54,  98  Atl.  328,  15  N.  C    C.  A.  457.  Employees  of 
individual  partners  cannot  be  added  to  employees  of  partnership  to  make 
five  and  bring  the  partnership  under  the  Act. 

78.  Kasovitch  v.  L.  R.  Wattis  Co.,  2  Cal.  Ind.  Ace.  Com.  357;  But  see 
Dyer  v.  James  Black  Masonry  &  Contracting  Co.,  192  Mich.  400,  158  N. 
W.  959;   Rockefeller  v.  Indus.  Comm.  —  Utah  —  (1921)    197  Pac.  1038. 

79.  Anderson  v.  Perew,  2  Cal.  Ind.  Ace.  Com.  727. 

80.  Dyer  v.  James  Black  Masonry  etc.  Co.,  192  Mich.  400,  158  N.  W. 
959;  Mich.  Act  amended  1921,  Part  I,  §  7. 

81.  Maffia   v.  L.   Aquilino,   3   Cal.   Ind.   Ace.   15;     Zanotti   Aquilino  & 
Lagomarsino  Co.,  3   Cal.  Ind.  Ace.  Com.   53;     United    States   Fidelity  & 
Guaranty  Co.  v.  Ind.  Ace.  Comm.  of  Cal.  174  Cal.  616.  163  Pac.  1013,  15 
N.  C.  C.  A.  457. 

82.  Maffla  v.  L.  Aquilino,  3  Cal.  Ind.  Ace.  Com.  15.    Held  not  an  as- 
signment and  partners  liable.    United  States  Fidelity,  etc.  Co.  v.  Indus- 
trial Ace.  Com.  174  Cal.  616,  163  Pac.  1013. 

83.  Sayers  v.  Girard,  1  Cal.  I.  A.  Dec.  352.    But  see  Wood  v.  Tupptr 
Lake  Chemical  Co.  (1916),  9  N.  Y.  St.  Dep.  Rep.  372. 

117 


§26  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  award  was  made  against  a  husband  and  wife  in 
California  the  award  against  the  wife  was  dismissed,  it  being 
held  that  she  was  not  a  partner  in  her  husband's  business.84 

Where  a  man  entered  into  a  contract  of  hire  with  a  partner- 
ship and  thought  he  was  working  for  the  partnership,  he  was 
held  to  be  an  employee  of  the  partnership,  though  he  was  in- 
jured while  doing  work  for  a  subcontractor  of  the  partnership.85 

§  26.  Employers  of  Teamsters. — When  teamsters  are  perform- 
ing work  directly  connected  with  the  business  of  the  owner,  no 
question  arises,  as  they  are  then  the  employees  of  such  owner. 
But  where  an  owner  of  teams  and  wagons  contracts  with  a  third 
party  to  furnish  team  and  teamster  for  a  stipulated  price  per 
day  for  both  to  the  third  party,  and  the  owner  pays  the  teamster, 
but  the  third  party  exercises  general  control  over  him  with  ref- 
erence to  his  work  but  with  no  authority  to  discharge  him  from 
his  general  employment  with  the  owner,  it  has  been  held  by  one 
line  of  decisions  that  the  teamster  is  the  employe  of  the  owner 
and  can  obtain  compensation  alone  from  him,  the  court  in  one 
case  holding  the  act  "inapplicable  to  any  relation  of  master 
and  servant  as  generally  understood  at  common  law,  other  than 
that  arising  out  of  the  contract  between  the  master  and  the 
servant,  whereby  the  servant  engages  to  work  for  the  master, 
and  the  master  on  his  part  engages  to  pay  the  servant  for  such 
work;  in  other  words,  that  it  is  inapplicable  to  a  condition  of 
things  where  a  servant  employed  by  a  master  directly  is  re- 
quired, as  part  of  his  contract  of  employment,  to  work  for  some 
other  person  for  a  compensation  payable  not  to  the  servant  but 
to  the  immediate  master."86 

84.  Lezaa  v.  Ind.  Comm.,  170  Wis.  — ,  175  N.  W.  87,  5  W.  C.  L.  J.  338. 

85.  Scott  v.  O.  A.  Hankinson  &  Co.,  205  Mich.  353,  171  N.  W.  489,  3 
W.  C.  L.  J.  759. 

86.  Rongo  v.  Waddington  &  Sons  Inc.  et  al.,  87  N.  J.  L.  395,  94  Atl.  408, 
9  N.  C.  C.  A.  402;    Jones  v.  Liverpool,  14  Q.  B.  D.  890;    Kirkpatrick  v.  In- 
dustrial Ace.  Comm.,  31  Cal.  App.  668,  161  Pac.  374;    Kellogg  v.  Church 
Charity  Foundation  of  L.  I.,  203  N.  Y.  191,  96  N.  E.   406,   38  L.  R.  A. 
(N.  S.)  481n,  3  N.  C.  C.  A.  444;    Pigeon  v.  Employers  Liability  Assurance 
Corporation,  216  Mass.,   51,  102  N.  E.  932,  4  N.  C.  C.  A.  516;     Dale  v. 
Saunders,  218  N.  Y.  59,  112  N.  E.  571,  15  N.  C.  C.  A.  454;    In  re  Clancy, 

118 


WHO  COMES  UNDER  THE  ACT.  §26 

Another  line  of  decisions  hold  that  the  third  party  is  the 
special  employer  from  whom  alone  the  teamster  can  obtain  com- 
pensation. The  court  in  one  of  these  cases  remarked:  "The 
principles  of  law  which  control  in  this  class  of  cases  are  quite 
well  settled.  A  servant  in  the  general  employment  of  one  person, 
who  is  temporarily  loaned  to  another  person  to  do  the  latter 's 
work,  becomes,  for  the  time  being,  the  servant  of  the  borrower, 
who  is  liable  for  his  negligence.  But,  if  the  general  employer 
enters  into  a  contract  to  do  the  work  of  another,  as  an  indepen- 
dent contractor,  his  servants  do  not  become  the  servants  of  the 
person  with  whom  he  thus  contracts,  and  the  latter  is  not  liable 
for  their  negligence."87  The  court  in  this  case,  also  approves 
the  doctrine  of  the  case  of  Schmedes  v.  Deffaa,  214  N.  Y.  675; 
108  N.  E.  1107,  rev'g  153  App.  Div.  819,  138  Supp.  931,  in  which 
a  livery  stable  keeper  who  had  an  order  from  an  undertaker  to 
furnish  carriages  for  a  funeral  and  not  having  a  sufficient  num- 
ber of  his  own  applied  to  another  liveryman  for  an  additional 
carriage  and  driver.*  The  second  liveryman  sent  a  carriage  and 
driver  as  requested.  The  court  remarked  that  this  clearly  was 

228  Mass.  316,  117  N.  E.  347,  1  W.  C.  L.  J.  87,  15  N.  C.  C.  A.  454;  Hunt 
v.  N.  Y.,  N.  H.  &  H.  R.  R.,  212  Mass.  102,  98  N.  E.  787,  40  L.  R.  A.  N.  S.  778; 
Corliss  v.  Keown,  207  Mass.  149,  93  N.  E.  143;  Waldock  v.  Winfield,  2  K.  B. 
596;  Hogan's  Case,  —  Mass.  — ,  (1920),  127  N.  E.  892,  6  W.  C.  L.  J.  321; 
Golden  &  Boter  Transfer  Co.  v.  Brown  &  Schler  Co.,  —  Mich.  — ,  (1920), 
177  N.  W.  202,  6  W.  C.  L.  J.  58;  State  ex  rel.  B.  M.  Gilmore  Co.  v. 
District  Court  of  Hennepin  Co.,  —  Minn.  — ,  (1920),  179  N.  W.  216,  6  W. 
C.  L.  J.  697. 

87.  Hartel  v.  T.  H.  Simonson  &  Son.  Co.,  218  N.  Y.  345,  113  N.  E.  255; 
O'Neill  v.  Sperry  Engineering  Co.,  1  Conn.  Comp.  Dec.  387;  Gimber  v.  T. 
P.  Kane  Co.,  2  N.  Y.  St.  Dep.  Rep.  475;  Nolan  v.  Cranford  Co.,  4  N.  Y.  St. 
Dep.  337;  Christiansen  v.  McLellan,  133  Pac.  434,  74  Wash.  318;  Scribners 
Case,  231  (Mass.)  132,  120  N.  E.  350,  2  W.  C.  L.  J.  905;  Arnett  v.  Hayes 
Wheel  Co.,  201  Mich.,  67,  166  N.  W.  957,  1  W.  C.  L.  J.  1061;  Dale  v.  Hyal 
Const.  Co.,  175  N.  Y.  App.  Div.  284,  161  N.  Y.  S.  540,  15  N.  C.  C.  A.  454; 
Nolan  v.  Cranford  Co.,  219  N.  Y.  581,  Aff'g.  171  N.  Y.  App.  Div.  959,  155  N. 
Y.  S.  1128;  Schweltz  v.  Thompson  &  Morris  Co.  of  N.  J.,  —  N.  Y. 
App.  — ,  (1920),  127  N.  E.  904,  6  W.  C.  L.  J.  365;  In  re  Willis  Hainer, 
3rd  A.  R.  U.  S.  C.  C.  p  97.  Contra,  see  O'Boyle  v.  Parker  Young  & 
Co.,  —  Vt.  — ,  112  Atl.,  385,  (1921). 

119 


§26  WORKMEN'S  COMPENSATION  LAWS. 

a  case  where  the  first  liveryman  procured  additional  facilities  for 
doing  his  own  work,  and  it  was  held  that  the  first  liveryman  was 
liable  for  the  driver's  negligence. 

Other  decisions  hold  that  the  teamster  may  claim  and  obtain 
compensation  from  either  or  both,  the  owner,  his  general  em- 
ployer, or  the  third  party,  his  so-called  special  employer  in  whose 
work  the  teamster  is  injured.88 

Again  it  has  been  held  that  where  the  teamster  sues  the  third 
party,  his  so-called  special  employer,  for  damages  at  common 
law  on  account  of  the  latter 's  negligence  the  court  will  dismiss 
the  case  for  lack  of  jurisidiction  for  the  reason  that  the  teamster 
must  make  his  claim  if  any  under  the  Compensation  Act.89 

There  is  likewise  considerable  conflict  in  the  decisions  in  cases 
where  the  owner  of  teams  drives  one  of  them  himself.  It  being 
held  in  some  jurisdictions  that  he  is  the  employee  of  the  person 
thus  employing  him  and  his  teamsters,90  but  he  himself  was  the 
employer  of  his  teamster.91  In  other  jurisdictions  it  is  held  that 
he  is  not  an  employe,  but  an  independent  contractor  and  also  a 
casual  employee.92  It  has  also  been  held  that  a  workman  is  not 
an  employee  of  the  foreman  of  a  general  employer  just  because  at 

88.  De  Noyer  v.  Cavanaiigh,  221  N.  Y.  273,  116  N.  E.  992,  Aff'g,  177  N. 
Y.  App.  Div.  939,  163  N.  Y.  Supp.  1114,  114  N.  E.  1074;   Employers'  Liability 
Assur.  Corp.  v.  Ind.  Ace.  Comm.  of  Cal.,  177  Pac.  273,  3  W.  C.  L.  J.  407. 

89.  Lee  v.  Cranford  Co.,  182  App.  Div.  190,  169  N.  Y.  S.  370,  1  W.  C.  L.  J. 
854,  16  N.  C.  C.  A.  406. 

90.  Walters  v.  McGovern,  4  N.  Y.  St.  Rep.  361;    Rider  v.  Little  Co. 
(Mich.)  Ind.  Ace.  Bd.  Apr.  1913;    Mantz  v.  The  Faulk  Co.,  Fourth  Annual 
Rep.  (1915)  Wis.  Ind.  Com.  15;    Seward  v.  Sunset  Trading  Co.,  3  Cal.  Ind. 
Ace.  Com.  49;    Fiorio  v.  Ferrie,  1  Conn.  Comp.  Dec.  459;    Tuttle  v.  Emburg- 
Martin  Lumber  Co.,  192  Mich.  385,  158  N.  W.  875;    Centrellos  Case,  232 
Mass.  456,  122  N.  E.  560,  3  W.  C.  L.  J.  740. 

91.  Stevens  v.  Tittle,  2  Cal.  Ind.  Ace.  Com.  145.    But  see  also,  Western 
Indemnity  Co.  v.  Pillsbury,  172  Cal.  807,  159  Pac.  721. 

92.  Cheevers  v.  Fidelity  &  Dep.  Co.,  1  Mass.  Ind.  Ace.  Bd.  365,  219  Mass. 
244,  106  N.  E.  861;    Ryan  v.  County  Council  of  Tipperary  (S.  R.)   48  Ir. 
L.  T.  69,  5  B.  W.  C.  C.  578;    See  v.  Leidecker,  152  Ky.  724,  154  S.  W.  10; 
Little  v.  Hackett,  116  U.  S.  379,  29  L.  Ed.  652.     In  Chisholm  v.  Walker 
(1909),  46  Scotch  L.  R.  24,  2  B.  W.  C.  C.  261;  Sayers  v.  Girard,  1  Cal.  I. 
A.  C.   352. 

120 


WHO  COMES  UNDER  THE  ACT.  §26 

the  time  he  was  injured  he  happened  to  be  driving  a  team  that 
was  owned  by  the  foreman.93 

"The  relator's  husband,  Charles  Jacobson,  was  employed  by 
Minneapolis.  He  was  driving  a  sprinkling  wagon.  He  furnished 
his  team  and  the  running  gears  of  the  wagon.  The  city  furnished 
the  tank.  He  kept  the  sprinkler  in  the  rear  of  his  house  and 
stabled  his  horses  in  his  barn  on  his  premises  and  fed  and  cared 
for  them  at  his  own  expense.  He  worked  eight  hours  a  day 
commencing  at  8,  and  quitting  at  5,  with  an  hour  off  at  noon, 
and  received  for  his  services  and  the  use  of  his  team  and  wagon 
$6  per  day.  On  the  day  of  his  injury  he  had  finished  his  day's 
work,  and  gone  home  and  stabled  and  fed  his  horses,  and  had 
eaten  his  supper.  After  supper  he  went  to  the  stable  to  doctor 
one  of  his  horses  which  had  a  sore  neck.  While  he  was  so  en- 
gaged the  horse  killed  him.  *  *  *  "The  facts  stated  give  no  right 
to  compensation.  The  plaintiff's  work  for  the  day  was  done. 
He  was  not  to  do  service  for  the  city  until  the  next  morning. 
The  horses  were  his  and  he  fed  and  cared  for  them  and  furnished 
them  and  his  wagon  ready  for  work  at  a  definite  time.  The 
accident  did  not  arise  out  of  his  employment  any  more  than 
would  an  accident  which  came  while  he  was  repairing  his  wagon 
or  while  doing  other  work  in  preparation  for  his  next  day's 
work  for  the  city.  The  relator  cites  cases  where  a  teamster,  in- 
jured while  caring  for  his  horses  after  their  work  for  the  day 
was  done  was  allowed  compensation.  Smith  v.  Price,  168  App. 
Div.  421,  153  N.  Y.  Supp.  221;  Costello  v.  Taylor,  217  N.  Y.  179, 
111  N.  E.  755;  Suburban  Ice  Co.  v.  Industrial  Board,  274  111. 
630,  113  N.  E.  979.  They  involve  situations  where  a  teamster 
was  doing  work  for  his  employer  in  the  care  of  his  employer's 
team  and  as  a  part  of  the  work  for  his  employer."95 

Claimant  a  garbage  collector  was  injured  as  a  result  of  his 
horses  becoming  frightened  while  he  was  taking  his  horses  and 
equipment  back  to  the  barn  to  his  immediate  employer.  Claim- 

93.  Yolo  Water  ft  Power  Co.  v.  Ind.  Ace.  Com.  35  Cal.  App.  14,  168  Pac. 
1146. 

95.  State  ex  rel.  Jacobson  v.  Dlst.  Court  of  Hennepin  Co.,  144  Minn.  259, 
175  N.  W.  110,  5  W.  C.  L.  J.  288. 

121 


§26  WORKMEN'S  COMPENSATION  LAWS. 

ant's  immediate  employer  Boadi  was  not  subject  to  the  provisions 
of  the  compensation  act.  In  holding  that  he  was  entitled  to 
compensation  for  an  injury  arising  out  of  and  in  the  course  of 
the  employment  the  court  said:  "Boadi  was  not  subject  to  the 
provisions  of  the  Compensation  Act,  and  that  act  provides 
(Stats,  sec.  2394 — 3)  that  an  employer  subject  to  the  provisions 
of  the  act  shall  be  liable  for  compensation  to  an  employee  of  a 
contractor  or  subcontractor  under  him  who  is  not  subject  to  the 
act  in  any  case  where  such  employer  Avould  have  been  liable  for 
compensation  if  such  employee  had  been  working  directly  for 
such  employer.  The  city  of  Milwaukee  is  subject  to  the  pro- 
visions of  the  act,  and  this  provision  plainly  made  the  claimant 
here  the  employee  of  the  city  while  carrying  out  Boadi 's  con- 
tract with  the  city  to  the  same  extent  that  he  was  an  employee 
of  Boadi  so  far  as  the  purposes  of  the  Compensation  Act  are 
concerned.  So  there  can  be  no  doubt  of  the  existence  of  the  re- 
lation, of  employer  and  employee  within  the  meaning  of  the 
Compensation  Act  at  the  time  of  the  accident.  That  the -claimant 
was  then  performing  service  growing  out  of  and  incidental  to 
his  employment  seems  equally  beyond  doubt.  He  was  taking 
the  garbage  collection  equipment,  part  of  which  belonged  to  the 
city,  to  its  usual  place  of  storage  and  care  so  that  it  should  be 
ready  for  the  work  of  the  following  day.  We  can  hardly  con- 
ceive of  a  service  which  grows  out  of  and  is  incidental  to  his 
employment  as  a  garbage  collector  if  this  is  not  such  a  ser- 
vice."96 

Where  a  garbage  collector  for  a  city,  hired  teams  and  team- 
sters and  sent  them  out  to  collect  garbage  for  the  city,  and  "one 
of  the  teamsters  was  injured  while  returning  to  his  general  em- 
ployer's barns  after  completing  his  days  work  for  the  city,  the 
•court,  held  that  he  must  look  to  his  general  employer,  and  not 
the  city, .  for  compensation,  saying :  where  a  horse  and  wagon 
has  been  let  by  the  general  employer  into  the  service  of  another, 
the  driver  is  subject  to  the  control,  and  therefore  is  the  agent 

96.  City  of  Milwaukee  v.  Fera  (1919)  174  N.  W.  926,  5  W.  C.  L.  J.  336; 
In  re  Cornerford,  229  Mass.  573,  118  N.  E.  900,  1  W.  C.  L.*  J.  793. 

122 


WHO  COMES  UNDER  THE  ACT.  §27 

of  his  general  employer  as  to  the  care  and  management  of  the 
horse.97 

§  27.  Employer  of  Less  than  Stated  Number  of  Employees.— 
The  following  provision  with  slight  variations  is  phrasiology 
and  number  of  employees  is  typical  of  nineteen  American  Com- 
pensation Acts:  "If  the  employer  has  less  than  five  employees 
regularly  employed  in  his  business  the act. . .  .shall  not  ap- 
ply to  such  employment  unless  such  employees  and  their  em- 
ployers voluntarily  elect  in  the  manner  herein  specified  to  be 
bound  by  this  act." 

Changing  conditions  in  an  employers  business  makes  it  diffi- 
cult of  determination  at  times  whether  an  employer,  has  five  or 
more  employees  regularly  employed  in  his  business,  and  .there- 
fore under  the  act,  or  less  than  five  and  not  under  the  act.  It 
has  been  held  that  the  employees  of  a  partnership  could  not  be 
added  to  the  number  of  the  employees  of  an  individual  member 
of  the  partnership,  so  as  to  bring  the  individual  member  and 
his  employees  under  the  act  ;98  that  musicians  furnished  by  a 
leader,  twice  each  week,  to  play  in  an  amusement  park,  the  leader 
stipulating  the  amount  of  compensation  they  were  to  receive, 
were  regular  employees  of  the  park  and  could  be  counted  in  de- 
termining whether  the  employer  had  five  or  more;99  that  the 
phrase  "having  regularly  less  than  five  employees"  refers  to  the 
number  of  employees  actually  on  a  job,  or  in  the  service  of  an 
employer  at  the  time  of  the  injury;1  that  an  employer  who  en- 
deavors to  evade  liability  under  the  act  by  temporarily  loaning 
one  of  his  employees,  so  he  has  less  than  five  will  still  be  con- 
sidered under  the  act  ;2  that  a  farmer  who  does  not  regularly 

9J.  Mackey  v.  City  of  New  York,  184  N.  Y.  S.  495  (1920).  7  W.  C. 
L.  J.  117. 

98.  Coady  v.  Igo,  91  Conn.  54,  98  All.  328;  Sullivan  v.  Pitgerald,  Conn. 
Comp.  Dec.  Oct.  26,  1916. 

99.  Boyle  v.  Mahoney  &  Tierney,  92  Conn.  404,  103  All.  127,  1  W.  C.  L. 
J.  937,  18  N.  C.  C.  A.  905. 

1.  Garde  v.  Chaplin,  1  Conn.  Comp.   Dec.   607;   Regnier   v.  Rand,   98 
N.  H.  108  Atl.  810,  5   W.  C.   L.  J.   559. 

2.  Grtschuck  v.  S.  Borden  6  Co.,  1  Conn.  Comp.  Dec.  633. 

123 


§27  WORKMEN'S  COMPENSATION  LAWS. 

employ  four  or  more  men  is  not  an  employer,  within  the  meaning 
of  the  Wisconsin  Act,  because  he  temporarily,  at  more  or  less 
temporarily  recurring  times,  employed  four  or  more  men  for 
specific  work;3  that  a  corporation  which  owns  and  operates  a 
saw  mill,  which  is  not  in  operation  on  all  the  working  days  of 
the  year,  but  when  in  operation  requires  five  or  more  employees 
to  operate  it,  is  an  employer  having  regularly  five  or  more  em- 
ployees, within  the  meaning  of  the  Ohio  Act.* 

While  it  has  been  held  that  where  a  coal  wagon  driver  hires  a 
passerby  to  help  him  move  his  mired  wagon,  the  passerby  who 
was  injured  in  this  work  was  entitled  to  compensation  from  the 
employer  of  the  coal  wagon  driver,  in  that  his  work  was  part  of 
the  usual  business  of  the  employer,5  but  he  could  not  properly  be 
.counted  and  considered  as  the  fifth  employee  or  as  one  "regular- 
ly employed"  in  the  employer's  business,  so  as  to  bring  the  em- 
ployer under  the  act,  when  he  had  but  four  other  employees. 

Whether  officers  of  a  corporation  could  be  counted  to  make  up 
the  required  five  or  more  employees  within  the  meaning  of  the 
act  would  depend  on  the  facts  of  the  particular  case,  whether 
they  were  actually  regularly  employed  in  the  usual  course  of  the 
business  of  the  corporation.  Assuming  for  the  sake  of  the  ex- 
ample that  an  act  is  limited  in  its  application  to  employers  of  five 
or  more  employees.  The  fact  that  an  employer  regularly  em- 
ployed six  men  in  his  usual  business,  two  of  who  rejected  the 
act,  would  not  in  the  author's  opinion,  exempt  the  employer 
from  the  operation  of  the  act  as  one  who  has  less  than  five  em- 
ployees, though  if  an  employer  has  four  men  employed  in  his 
usual  business  and  employs  another  whose  average  annual  earn- 
ings exceed  three  thousand  dollars  or  other  stated  amount  men- 
tioned in  several  acts  as  exempting  an  employee  from  its  opera- 
tion, the  employer  would  not  then,  according  to  the  language 
of  some  acts,  be  presumed  to  be  under  them,  as  a  person  whose 
average  annual  earnings  exceeds  the  stated  amount,  is  as  a  rule 

3.  Kelly  v.  Haylock,  163  Wis.  326;  157  N.  W.  1094;   11  N.  C.  C.  A.  382. 

4.  Clements  v.  The  Columbus  Saw  Mill  Co.,  1  Bui.   Ohio  Ind.  Comm. 
161. 

5.  State  v.  Ramsey  &  Co.,  138  Minn.  416,  165  N.  W.  268. 
124 


WHO  COMES  UNDER  THE  ACT.  §27 

not  considered  an  employee  for  the  purposes  of  the  acts,  and  the 
employer  would  not  have  five  employees  within  the  meaning  of 
the  act,  as  for  example  §  8  of  the  North  Dakota  Act,  1921.  In  the 
determination  of  this  question  it  is,  however,  nece&sary  to  examine 
carefully  the  specific  provisions  of  the  various  acts. 

In  the  determination  of  the  question  of  whether  a  city  lighting 
plant  in  Kansas  employed  the  required  number  of  men  to  bring 
it  within  the  act  it  was  held  that  the  required  number  of  fifteen 
could  not  be  made  up  by  including  mere  clerical  employees  in 
the  office  of  the  city  clerk.  The  court  said:  "It  is  not  within 
the  letter  or  spirit  of  this  statute  that  clerical  employes  like 
the  clerk  and  stenographer  in  the  city  clerk's  ofiBce  should  be  in- 
cluded within  the  list  of  those  engaged  in  the  hazardous  enter- 
prise of  operating  an  electric  light  and  waterworks  system.7 

An  employer  of  less  than  five  employees  will  not  come  under 
the  operation  of  the  act  by  reason  of  the  fact  that  he  is  engaged 
in  drilling  an  oil  or  gas  well  since  the  oil  or  gas  well  is  not  a 
mine,  within  the  meaning  of  the  provision  extending  the  effect 
of  the  act  to  mines  irrespective  of  the  number  of  workmen  em- 
ployed.8 

Where  it  appears  that  a  company,  which  is  being  sued  for  per- 
sonal injuries  by  its  servant,  employs  more  than  five  servants, 
it  is  subject  to  the  Texas  Workmen's  Compensation  act,  whether  as 
a  matter  of  fact  it  had  really  become  a  subscriber  or  not,  and 
consequently  cannot  plead  assumption  of  risk.9 

Where  a  brick  manufacturer  operated  a  silica  bed  in  con- 
nection with  his  brick  business,  and  who  employed  more  than 
four  employees,  he  was  liable  for  the  death  of  a  silica  miner,  al- 
though fewer  than  the  stated  number  of  employees  were  en- 
gaged at  the  silica  bed,  since  more  than  the  stated  number  were 

7.  Udey  v.  City  of  Winfleld.  97  Kan.  279,  155  Pac.  43.  14  N.  C.  C.  A. 
943. 

8.  Hollingsworth  v.  Berry,  —  Kan.  — ,  (1920),  192  Pac.  763,  6  W.  C.  L. 
J.  676. 

9.  Wichita  Falls  Motor  Co.  v.  Meade,  —   Tex.  Civ.   App.  — ,   203  8. 
W.  71,  2  W.  C.  L.  J.  135. 

125 


§28  WORKMEN'S  COMPENSATION  LAWS. 

regularly  employed  in  the  same  business  or  in  common  employ- 
ment.10 

A  teamster  having  more  than  five  employees  comes  within  the 
act  notwithstanding  all  of  the  teamster's  employees  were  not 
working  at  the  same  job  but  worked  on  various  different  jobs.11 

§  28.  Regularly  Employed  and  Usual  Business  of  Employer.— 
The  phrase  "regularly  employed  in  the  employer's  business" 
and  the  phrase  "usual  business  of  the  employer"  appears  in  con- 
nection with  slightly  varying  phraseology  in  the  compensation 
act  of  many  states. 

"There  are  few  words  more  current  in  our  speech  than  the 
word  'business,'  few  that  include  a  greater  variety  of  subjects 
and  yet  none  which  in  popular  speech,  have  greater  or  more 
marked  singleness  in  denotement.  When  one's  business  is  the 
subject  of  common  speech,  no  one  can  be  in  doubt  as  to  the 
reference.  It  would  be  a  very  exceptional  person — we  do  not 
know  how  to  otherwise  describe  him — who  would  not  understand 
that  the  reference  is  to  be  the  habitual  or  regular  occupation 
that  the  party  was  engaged  in  with  a  view  to  winning  a  livelihood 
or  some  gain.  These  objects  are  necessarily  implied  when  one's 
business  is  spoken  of.  Eliminate  livelihood  and  gain,  and  it  is 
110  longer  business,  but  amusement,  which  no  one  confounds  with 
business.  What  we  have  said  as  to  the  popular  understanding 
of  the  word  business  is  just  what  Webster  defines  it,  'Some 
particular  occupation  or  employment  habitually  engaged  in  for 
livelihood  or  gain.' 

In  the  case  quoted  from,  the  defendant,  a  married  woman,  re- 
sided with  her  husband  in  a  house  which  she  owned,  and  in  the 
course  of  remodeling  the  house  she  employed  the  claimant  to  do 
some  plastering,  which  would  require  about  two  days  to  complete. 
Claimant  had  been  at  work  a  few  hours,  when  he  was  injured  by 
the  fall  of  a  scaffold.  In  holding  that  defendant  was  not  en- 

10.  Indus.  Comm.  v.  Funk,  —  Colo.  — ,   (1920),  191  Pac.  125,  6  W.  C. 
L.  J.  436. 

11.  Colbourn  v,  Nichols  —  Del,  — ,  (1920),  109  Atl.  882,  6  W.  C.  L.  J. 
140. 

126 


WHO  COMES  UNDER  THE   ACT.  §28 

gaged  iii  'business,'*  as  contemplated  by  the  Compensation  Act, 
the  court  further  said:  "The  points  of  difference  between  the 
employment  the  defendant  was  engaged  in  and  the  business  which 
is  contemplated  by  the  act  and  understood  in  common  parlance, 
are  so  marked  that  the  two  cannot  be  confounded;  one  cannot  be 
the  equivalent  of  the  other.  The  defendant's  employment  was 
not  in  any  way  dependent  on  patronage;  it  had  not  for  its 
object  profit  or  gain,  but  simply  her  own  personal  gratification 
and  comfort;  it  was  not  regular  or  habitual,  but  it  terminated  with 
the  completion  of  the  one  thing  that  engaged  her  attention  at 
Ilio  time.  ;uul  there  is  not  the  slightest  indication  that  she  con- 
templated resuming  or  doing  a  life  service  for  another,  nor  indeed 
that  she  had  ever  attempted  anything  of  the  kind  before."12 

"The  term  'business,'  in  common  parlance,  means  that  em- 
ployment which  occupies  the  time,  attention  and  labor."13 

Referring  to  the  word  "business"  as  used  in  the  Minnesota 
Act,  the  Supreme  Court  of  that  State  said:  "Assuming  that  the 
lease  obligated  defendant  to  erect  a  shelter  for  his  tenant's  stock, 
or  that  he  had  voluntarily  agreed  so  to  do,  we  may  say,  in  a 
certain  §ense.  that  the  erection  became  his  business  or  duty.  But 
that  cannot  be  the  meaning  of  the  word  'business'  in  this  statute. 
It  must  have  the  same  general  significance  with  respect  to  the 
work  or  calling  of  the  employer  as  the  words  'trade,  profession, 
or  occupation,'  hence  must  refer  to  the  employer's  ordinary  vo- 
cation, and  not  to  every  occasional,  incidental,  or  insignificant  work 
he  may  have  to  do.  When  we  speak  of  a  person's  trade  or 
profession,  we  generally  refer  to  that  branch  of  the  world's 
activites  wherein  he  expends  his  usual  everyday  efforts  to  gain  a 
livelihood."14 

In  constructing  a  sewer,  a  city  is  not  engaged  in  an  enterprise 
involving  any  element  of  gain  or  profit,  and  such  work  is  not 
within  the  Kansas  Act  on  that  account.  15 

12.  Marsh  v.  Groner,  258  Pa.  473,  102  Atl.   127,  2  W.  C.  L.  J.  134. 

13.  Stephenson  v.  Primrose,  8  Porter  (Ala.)  155,  quoted  with  approval 
in  Adam  v.  Musson,  37  111.  App.  501. 

14.  State  ex  rel.  Lennon    v.    District    Court  of  Douglas  County  .138 
Minn.    103.    164  N.  W.  366. 

15.  Roberts  v.  Ottawa,  101  Kan.  228,  165  Pac.  869;  Redfern  v.  Eby.  - 
Kan.  — ,  170  Pac.  800. 

127 


§28  WORKMEN'S  COMPENSATION  LAWS. 

The  harvesting  of  ice  by  a  farmer  for  farm  purposes,  and  not 
as  a  business  or  for  pecuniary  gain,  is  not  within  the  New  York 
Act.16 

The  term  "gain  or  profit,"  as  used  in  the  Nebraska  Act. 
means  pecuniary  gain.17 

Considering  the  meaning  of  the  term  "usual  course,"  the 
Supreme  Court  of  Minnesota  has  said:  "The  words  'usual  course' 
must  be  regarded  as  more  restrictive  than  the  language  employed 
in  the  Connecticut  and  English  Acts.  This  is  the  view  taken  by 
the  California  courts  in  London  and  Lancashire,  etc.,  Co.  v.  In- 
dustrial Comm.,  173  Cal.  642,  161  Pac.  2,  and  La  Grande  Laundry 
Co.  v.  Pillsbury,  173  Cal.  177,  161  Pac.  988.  *  *  *  The  Su- 
preme Court  of  Illinois,  in  construing  the  clause  'the  usual  course 
of  trade,  business,  profession,  or  occupation  of  the  employer/  in 
Uphoff  v.  Industrial  Comm,  271  111.  312,  111  N.  E.  128,  L.  R.  A. 
1916E,  329,  held  that  an  injury  received  by  a  workman  hired 
by  a  farmer  to  erect  a  broom  corn  shed  on  his  farm  was  not  re- 
ceived in  the  usual  course  of  business  of  the  employer.  The  Illi- 
nois Act  differs  from  ours,  in  that  an  employee  is  excluded  from 
the  benefits  of  the  law  if  the  employment  is  casual  or  if  the  in- 
jury did  not  occur  in  the  usual  course  of  the  employer's  trade, 
etc.  But  the  meaning  of  the  latter  clause  is  not  affected  by  the 
conjunction,  which  serves  merely  to  show  the  relation  to  what 
precedes,"18 

One  employed  by  a  paper  bag  company  to  install  an  engine,  was 
not  within  the  New  York  Act,  as  the  employer  was  not  engaged 
in  the  business  of  installing  machinery.19  The  owner  of  a  hotel 

16.  Mullen  v.  Little,  186  App.  Div.  169,  173  N.  Y.  Supp.  578. 

17.  Ray  v.  School  Dist.  of  Lincoln,  in   Lancaster    County,    Neb.  — , 
(1920)  181  N.  W.  140;    Rooney  v.  City  of  Omaha,  —  Neb.  — ,  (1920),  181 
N.  W.  143;    Allen  v.  State,  173  App.  Div.  455,  160  N.  Y.  S.  85;    Redfern  v. 
Eby,  102  Kan.  484,  170  Pac.  800;    Gray>.  B.oard  of  Comm.  of  Sedgwick 
Co.,  101  Kan.  195,  165  Pac.  867,  L.   R.   A.  1918P,  182;     Sexton    v.    Pub 
Service  Comm.  180  App.  Div.  Ill,  167  N.  Y.  S.  493. 

18.  State  ex  rel.  Lennon  v.  District  Court  of  Douglas   County,  138 
Minn.  103,  164  N.  W.  366. 

19.  McNally  v.  Diamond  Mills  Paper  Co.,  178  App.  Div.  342,  164  N.  Y. 
Supp.  793;    Dose  v.   Moekle  Lithographic  Co.,   179   App.    Div.    519,   165 
N.   Y.  Supp.  1014. 

128 


WHO  COMES  UNDER  THE  ACT.  §28 

is  not  pursuing  his  business  within  the  meaning  of  the  Compen- 
sation Act,  when  he  causes  rooms  to  be  occasionally  painted  and 
decorated,  though  it  is  usual  to  have  work  of  that  nature  done 
from  time  to  time.20 

A  foreman  constructing  a  cottage  for  employees  of  a  large  cor- 
poration constantly  employing  carpenters  on  its  buildings  was 
held  to  be  employed  in  the  "usual  course"  of  the  business  of  the 
employer.*1  AVhere  an  employee  was  engaged  in  trimming  trees 
for  his  employer,  an  electric  company,  under  directions  of  the 
company's  agent,  which  he  had  been  hired  to  do,  the  work  was 
held  not  to  be  casual  or  outside  the  usual  course  of  the  trade, 
business,  profession  or  occupation,  though  the  company  may 
have  no  interest  in  trimming  the  particular  tree  on  which  the 
employee  was  working  at  the  time  of  the  injury.22  An  employee 
injured  while  repairing  a  clamshell  dredge,  which  his  employer 
intended  to  sell  was  not  injured-  in  the  course  of  his  employers 
business  of  leasing  roadmaking  machines.23  Thought  a  man  em- 
ployed for  an  emergency  job,  loading  ice  upon  a  refrigerator  car, 
the  work  to  last  a  few  hours,  is  a  casual  employee,  he  is  within 
the  protection  of  some  acts  where  the  work  is  the  regular  business 
of  the  employer.24 

Employments  which  are  both  "casual  and  not  incidental  to  the 
operation  of  the  usual  business  of  the  employer"  are  not  com- 
pensable.  As  where  a  machinist  was  hired  by  a  farmer  to  re- 

20  Holbrook  v.  Olympia  Hotel  Co.,  200  Mich.  597,  166  N.  W.  876,  1  W. 
C.  L.  J.  1076;  La  Grande  Laundry  Co.  v.  Pillsbury,  173  Cal.  777,  161  Pac. 
988;  See  Walker  v.  Ind.  Ace.  Comm..  177  Cal.  737,  171  Pac.  954,  2  W.  C. 
L.  J.  29. 

21.  Miller  v.  Ind.  Ace.  Comm.,   32  Cal.  App.  250,    162    Pac.  651. 

22.  In  re   Howard,   218  Mass.  404.  105   N.  E.  636. 

23.  Stanbury  v.  Ind.  Ace.  Comm.,  36  Cal.  App.  68.   171  Pac.    698,  1 
W.  C.  L.   J.   925 

24.  Paul    v.  Nikkei,    1   Cal.  I.  A.  C.  Dec.    648,   11   N.  C.  C.  A.    375; 
Shouler    v.  Greenburg.   1   Cal.    I.  A.  C.  Dec.   146;    Cowles   v.  Alexander 
&    Kellogg.  2  Cal.    I.  A   C.  Dec.  615;   English    v.  Cain.    2  Cal.  I.A.C. 
Dec.   376;    McDermott  v.   Fanning,    3   Cal.   I.   A.   C.   Dec.   14;    Brain   v. 
Eisf  elder.  2    Cal.  I.A.C.  Dec.    30;   Walker  v.  Ind.  Ace.  177    Cal.,    737. 
171   Pac.,   954,    2   W.  C.  L.  J.  29;    Johnston    v.     Monasterevan    General 
Store  Co.,    (1908),    42    Irish   L.   T.   268;    2    B.  W.  C.  C.  183;    Blyth   r. 
Sewell,  (1909),  2  B.   W.  C.  C.   478. 

129 
W.  C.— 9 


§28  WORKMEN'S  COMPENSATION  LAWS. 

pair  a  tractor  used  in  plowing  and  was  injured  before  he  had 
finished  the  work  ;25  or  where  a  carpenter  was  injured  while  con- 
structing a  small  chicken  house  on  land  being  set  out  to  lemon 
trees,  the  business  of  the  employer  being  horticulture  and  the 
job  being  finished  within  four  days;20  where  a  rooming-house 
keeper  employed  a  plasterer  for  a  period  of  less  than  one  week 
to  plaster  certain  rooms  in  the  house  the  employment  was  con- 
sidered both  casual  and  not  in  the  usual  course  of  the  business 
of  the  employer.27  A  retired  physician  conducted  a  farm  for 
profit.  The  swaying  of  some  trees  shook  the  roots  and  thereby 
the  wall  of  a  building  on  his  property.  He  employed  a  man  to 
top  the  trees.  It  was  held,  that  it  was  for  the  purpose  of  the 
employers  trade  or  business,  and  therefore  under  the  act.28 

The  fact  that  the  cause  requiring  the  employment  is  unusual 
and  extraordinary  does  not  prevent  the  employment  from  being 
in  the  usual  course  of  the  employer's  business  as  where  a  rancher 
hires  men  to  fight  a  fire  to  save  the  grass  on  his  range,29  or  an 
automobile  mechanic  who  is  present  at  a  race  on  Sunday  to  re- 
pair his  employer's  cars  if  necessary,30  or  the  fact  that  the  em- 
ployer was  injured  in  the  construction  of  a  building,  which  was 
being  Constructed  to  house  coal,  the  handling  of  which  was  to  be 

25.  Maryland  Casualty  Co.  v.  Pillsbury,  172  Cal.  748,  158  Pac.  1031; 
Roberts  v.  Indus.  Ace.  Comm.,  —  Cal.  — ,  1921,  197  'Pac.   978. 

26.  Brockman    v.    Sheridan,    2    Cal.    I.    A.    C.    Dec.    1061;     Sutton    v. 
Rabinowitz,  5  Cal.  Ind.  Com.  Rep.  29;    Geller  v.  Rep.  Novelty  Works,  168 
N.  Y.  S.  263,     180  App.  Div.  762. 

27.  Augustine  v.  Cotter,  2  Cal.  I.  A.  C.  Dec.  49;    Trenholm  v.  Hough,-! 
Cal.  I.  A.  C.  Dec.  260;    Casterlotts  v.  McDonnell,  1  Cal.  LA.  C.  Dec.  351; 
Blood  v.  Ind.  Ace.  Com.  of  Colip,  157  Pac.  1140;    Holbrook  v.  Olympia 
Hotel  Co.,  200  Mich.  597,  166  N.  W.  876,  1  W.  C.  I*  J.  1076;    Solomon  v. 
Bonis  (N.  Y.),  168  N.  Y.  S,  676,  1  W.  C,  L,.  ff  687.  - 

28.  Cotter  v.  Johnson,  45  Ir.  L.  T,  259,  5  B.  W.-C.  C.  568 ;    Tombs  v. 
Bomford,  6  B.  W.  C.  C.  338;    Thompson  v.  Twiss,  90  Conn.  444,  97  Atl. 
328;     Lyman  v.  Lobu  and  Barrow,   5  Ind.  Com,  Cal.,  46;     Evans  v.  Bay 
City  Garage  Corp.,  5  Cal.  Ind.  Com.,  122;    -Smyth  .v.  Sm<yth,   5   Cal.   Ind. 
Comm.,  94;  Hardweck  v.  Armstrong  HoldfRg  Co.,  5  <3al.  Ind.  Com.,  8. 

29.  Mazzine  v.  Pac.  Coast  Ry.,  2  Cal.  I.  A.  C.  Dec.   -758> 

30.  Frint  Motor  Car  Co.  v.  Ind.  Comm.,  —  Wis.  — ,  170-N.  W.  285,  3  W. 
•C.-L.  J.  399.   -  .--      .  -•  -    -"-  • 


WHO  COMES  UNDER  THE  ACT.  §28 

undertaken  in  addition  to  the  employer's  regular  course  of  busi- 
ness.*1 

The  California,  Connecticut,  Iowa,  Minnesota,  British  and 
Missouri  acts  are  alike  in  that  a  casual  employee  may  be  under 
the  act  if  his  work  is  part  of  the  usual  business  of  his  employer, 
but  if  both  casual  and  not  in  the  usual  business  of  the  employer 
the  employee  is  not  under  the  act.  The  court  in  a  Minnesota  case 
said:  "The  language  of  the  statute  leaves  no  room  for  construc- 
tion. Though  casual,  if  the  employment  is  in  the  usual  course  of 
the  business  of  the  employer,  the  compensation  act  applies.  The 
Minnesota  Act  is  in  this1  respect  modeled  on  the  British  Work- 
men's Compensation  Law,  which  has  been  similarly  construed 
.  .  .  Part  of  the  business  of  a  municipal  corporation  is  the  im- 
provement and  repair  of  its  public  streets.  Respondent,  when 
injured,  was  an  employee  of  the  relator  and  engaged  in  this 
work.  The  compensation  act  applies."82 

One  employed  to  clean  house  in  a  large  lodging  house  was  held 
to  be  engaged  in  the  usual  course  of  business, .  though  the  em- 
ployment was  casual.  The  court  said,  "But  the  intermittent 
character  of  the  employment  is  not  of  itself  sufficient  to  exclude 
it  from  the  purview  of  the  statute,  section  14  does  not  except  em- 
ployments that  are  casual  only  but  those  that  are  both  casual 
and  not  in  the  usual  course  of  the  business."33 

The  acts  of  some  of  the  states  provide  that  if  the  employment 
is  "casual  or  not  in  the  trade  or  business  of  the  employer"  it  is 
exempted.  In  these  jurisdictions,  it  is  held  that  if  an  employ- 
ment is  casual,  that  alone  excludes  it  from  the  act  and  the  fact 
that  it  is  in  the  usual  course  of  the  employer's  business  is  iin- 

31.  State  ex  rel.  Lundgren  v.  Dist.  Court  Washington  County,  141  Minn. 
83,  169  N.  W.  488,  3  W.  C.  L.  J.  159,  18  N.  C.  C.  A.  139. 

32.  State  ex  rel.  City  of  Northfield  v.  Diet.  Court  of  Rice  Co.,  155  N.  W. 
103,  11  N.  C.  C.  A.  366;    State  v.  Ramsey  Co.,  138  Minn.  416,  165  N.  W. 
268,  1  W.  C.   L.  J.   642;    Hill  v.  Begg,  2  K.  B.  802.  1  B.  W.  C.   C.  320; 
Cotter  v.  Johnson.  5  B.  W.  C.  C.  568;  Smith  v.   Buxton,  84  L.  J.  K.  B. 
697,  11  N.  C.  C.  A.  383;  But  see  McLoughin  v.  Ind.  Ace.  Com.,  34  Cal. 
App.  739,    168  Pac.    1065.  1  W.  C.  L.  J.  497. 

33.  Walker  v.  Ind.  Ace.  Comm.  177  Cal.  737,  171  Pac.  954,  2  W.  C.  L.  J. 
29,  18  N.  C.  C.  A.  140. 

131 


§29  WORKMEN'S  COMPENSATION  LAWS. 

material,34  or  if  it  is  not  in  the  usual  course  of  the  employers 
business  it  is  immaterial  whether  or  not  it  is  casual.35 

A  carpenter  employed  in  the  construction  of  a  silo  upon  a 
dairy  farm  was  held  to  be  employed  in  dairy  labor  within  the 
meaning  of  the  California  act,  and  such  labor  was  in  the  regular 
course  of  the  employer's  business.36 

The  owning  and  renting  of  houses  as  an  investment  is  not  a 
' '  business ' '  within  the  meaning  of  the  California  act.37 

The  owner  of  a  department  store,  who  employs  a  number  of 
carpenters  regularly  about  the  store  and  maintains  a  carpenter 
shop  in  the  building,  while  engaged  in  a  non  hazardous  business 
in  the  conduct  of  the.  store,  is  in  so  far  as  the  carpenters  are  con- 
cerned, conducting  a  hazardous  business  and  they  are  entitled 
to  compensation.38 

§  29.  Casual  Employments  and  Regularly  Employed  in  Usual 
Business  of  Employer. — There  are  few  states  whose  acts  do  not 
exclude  casual  employment.  The  term  casual  employment,  when 
it  appears  in  the  act  in  the  conjunctive  with  "  usual  business  of 
the  employer"  is  not  as  significant  and  is  not  the  subject  of  so 
much  contention  and  varying  construction  as  has  arisen  over  it 
in  those  states  where  casual  employments  are  exempted  from  the 
compensation  act,  regardless  of  whether  or  not  they  are  in  the 
usual  course  of  the  employer's  trade  or  business.  Under  the 

34.  King's  Case,   220  Mass.  290,  107   N.  E.   959;     In   re,   Gaynor,   217 
Mass.  86,  104  N.  B.  399,  L.  R.  A.  1916A,  363  and  note;    Sabella  v.  Brazil- 
ere,  86  N.  J.  L.    505,  91  A.  1032;  Baer's  Exp.  etc.,  Co.  v.  Ind.  Bd.,  282 
111.    44,  118    N.  E.  412,   1  W.  C.  L.  J.  512;    Western  Union    Tel.    Co.   v. 
Hickman  (C.   C.  A.)    248  Fed.  899,  2   W.  C.  L.  J.  8;    Thede  Bros.  v.  Ind. 
Comm.   (111.)  3  W.  C.  L.   J.  242,  121  N.  E.   172,  Nebr.  3656,  §  106. 

35.  Packett  v.  Moretown  Creamery  Co.  (Va.)  99  Atl.   638;    Walker  v. 
Ind.  Ace.  Com.,  177  Cal.  737,  171  Pac.  954;    Shafter  Estate  Co.  v.  Ind.  Ace. 
Com.  of  Cal.,  166  Pac.  24;    Fields  v.  Wright,  et  al.,  5  Cal.  Ind.  Comm.  224. 

36.  Globe  Indemnity.  Co.  v.  Ind.  Ace.  Comm.,  —  Cal.  — ,  187  Pac.  452, 
5  W.  C.  L.  J.  486. 

37.  Lauzier  v.  Ind.  Ace.  Comm.,  —  Cal.  App.  — ,  185  Pac.    870,  5  W. 
C.  L.  J.  356. 

38.  Alterman  v.  A.  I.  Namm  &  Son,  190  N.  Y.  App.  Div.  76,  179  N.  Y. 
S.  584.  5  W.  C.  L.  J.  426. 

132 


WHO  COMES  UNDER  THE   ACT.  §29 

former  type  of  act  the  important  question  to  determine  is  whether 
the  particular  employment  is  in  the  course  of  the  employer's 
business.  It  if  is,  it  is  covered  by  the  act  and  it  is  immaterial 
whether  or  not  the  employment  is  casual.  The  construction  that 
has  been  placed  upon  this  term  in  various  jurisdictions  will  be 
of  some  value  here  in  that  it  is  in  a  sense  the  antonym  of  the 
phrase  "regularly  employed,"  as  used  in  many  acts. 

Its  contruction  will  therefore  throw  some  light  on  this  latter 
phrase  that  will  assist  in  determining  whether  an  employer  has 
five  or  more  employees  "regularly  employed"  and  is  -inder  the 
act,  or  whether  some  of  his  employees  are  casual  so  that  the 
total  number  of  his  properly  to  be  counted  employees  is  less  than 
five.  Webster  defines  "casual"  as  "happening  without  design 
and  unexpectedly,  coming  without  regularity,  occasional."  It  is 
defined  in  a  New  Jersey  decision  as  follows:  "The  ordinary 
meaning  of  the  word  'casual'  is  something  which  happens  by 
chance  and  an  employment  is  not  casual — that  is,  arising  through 
accident  or  chance — where  one  is  employed  to  do  a  particular 
part  of  a  service  recurring  somewhat  regularly  with  the  fair 
expectation  of  its  continuance  for  a  reasonable  period."38 

As  illustrative  of  the  distinction  between  the  wording  of  the 
acts  in  respect  to  casual  employment,  under  the  Massachusetts 
Act  no  one  whose  employment  is  "casual"  can  recover  compen- 
sation, while,  under  the  British  Act,  and  all  acts  containing  similar 
provisions,  one  whose  employment  is  "of  a  casual  nature"  comes 
within  the  acts,  provided  it  is  for  the  purpose  of  the  employer's 

39.  Sabella  v.  Brazelerio,  86  N.  J.  L.  505,  91  All.  1032,  6  N.  C.  C.  A. 
958.  See,  also.  Dyer  v.  James  Black  Masonry  &  Contracting  Co.,  192  Mich. 
400,  158  N.  W.  959;  Dewhurst  v.  Mather.  2  K.  B.  754,  1  B.  W.  C.  C.  328; 
Aurora  Brewing  Co.  v.Ind.  Board,  277  111.  142,  115  N.  E.  207;  Chicago  G.  W. 
Ry.  v.  Ind.  Com.,  284  111.  573,  120  N.  E.  508,  18  N.  C.  C.  A.  132.  3  W.  C,  L. 
J.  15;  Carter  v.  Industrial  Ace.  Comm.,  34  Cal.  App.  439.  168  Pac.  1065. 
1  W.  C.  L.  J.  497;  Sales  v.  Abbott  W.  C.  &  Ins.  Rep.  <Eng  )  114  L.  T.  N. 
S.  819,  9  B.  W.  C.  C.  333;  Hill  v.  Begg,  (1908),  2  K.  B.  802.  77  L.  J.  K.  B. 
1074,  99  L.  T.  104,  24  T.  L.  Rep.  711,  1  B.  W.  C.  C.  320;  Thompson  v. 
Twiss,  99  Conn.  444,  97  Atl.  328;  Bridger  v.  Lincoln  Feed  &  Fuel  Co.,  — 
Neb.  — ,  (1920),  179  N.  W.  1020,  7  W.  C.  L.  J.  211;  Thede  Bros.  v.  In- 
dustrial Comm.,  285  111.  483,  121  N.  E.  172;  Gaynor's  Case,  217  Mass.  81, 
4  N.  C.  C.  A.  502. 

133 


§29  WORKMEN'S  COMPENSATION  LAWS. 

trade  or  business.  In  ascertaining  the  meaning  of  the  term  cas- 
ual as  used  in  the  Massachusetts  and  similarly  worded  acts 
the  determinative  point  is  the  contract  of  service,  while  under 
those  acts  patterned  after  the  British  act  the  determinative  point 
is  the  nature  of  the  service  rendered.40 

It  has  been  held  that  a  carpenter  hired  temporarily  by  a  laun- 
dry company,  and  killed  while  repairing  the  house  of  a  stock- 
holder, was  a  casual  employee  and  not  employed  in  the  usual 
business  of  the  company  and  his  widow  was  not  entitled  to  com- 
pensation ;41  that  a  firm  of  caterers,  who  did  not  have  any  regular 
waiters  in  their  employ  but  engaged  men  who  followed  that  oc- 
cupation as  the  occasion  arose  were  not  liable  for  compensation 
to  a  waiter  injured  in  their  employ,  because  the  employment 
was  casual  and  not  periodic  and  regular;42  that  where  a  team- 
ster with  his  horse  and  wagon  is  hired  for  no  fixed  duration  of 
time  and  for  no  specific  job,  but  only  when  called  upon,  the  em- 
ployment is  casual;43  that  a  railway  section  hand,  procured  to 
assist  in  fighting  fire  on  a  ranch,  was  not  engaged  in  the  usual 
course  of  the  business  of  the  ranch  owner  :44  that  employment  of 
a  window  cleaner,  at  irregular  intervals,  to  clean  the  windows 
of  a  dwelling  house,  although  the  same  person  may  have  been 
engaged,  when  required  for  a  period  of  some  years,  is  casual  em- 
ployment;45 that  the  employment  was  casual  where  a  carpenter, 

40.  Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328,  L.  R.  A.  1916E,  506; 
Scully  v.  Industrial  Comm.,  284    111.,  567,    120  N.  B.  492,  3    W.  C.  L.  J. 
30.  18  N.  C.  C.  A.  136;  State  Ace.  Fund  v.   Jacobs,  --   Md.  — ,  106  Atl. 
255,  4  W.  C.  L.   J.  91;   Gaynor's  Case,  217  Mass.  86,  104   N.  E.  339. 

41.  La  Grande  Laundry  Co.,  v.  Pillsbury,  173  Cal.  77,  161  Pac.  988. 
Carnahan  v.  Mailometer  Co.,  —  Mich.  — ,  167  N.  W.  9,  1  W.  C.  L.  J.  1045, 
16  N.  C.  C.  A.  882. 

42.  Gaynor  Adm'r  etc.  v.    Standard  Accident   Ins.  Co.,  217   Mass.  86, 
104  N.  E.  339,  L.  R.  A.  1916  A,  363,  4  N.  C.  C.  A.  502. 

43.  Cheever's  Case,  219  Mass.  244,  106  N.  E.  861,  L.  R.  A.  1916  A.  note 
248;    Blood  v.  Ind.  Ace.  Comm.,  30  Cal   App.  274,  157  Pac.  1140;    Caca  v. 
Woodruff,  123  N.  E.  120,  4  W.  C.  L.  J.  51. 

44.  London,  etc.  Ace.  Co.  v.  Ind.  Ace.  Com.,  173  Cal.  642,  161  Pac.  2. 
But  see  Massini  v.  Pacific  Coast  Ry.,  2   Cal.  Ind.  Ace.  Com.  758. 

45.  Hill  v.  Begg  (1908),  2  K.  B.  (Eng.)  802,  1  B.  W.  C.  C.  320;  Rennie 
v.  Reid  (1908),  45  Scotch  L.  R.  814,  1  B.  W.'  C.  C.  324;  Ritchings  v.  Bryant 

(1913),  6  B.  W.  C.  C.  183;    Knight  v.  Bucknill  (1913),  6  B.  W.  C.  C.  160; 
Aurora  Brewing  Co.  v.  Ind.  Bd.  of  111.,  277  111.  142,  115  N.  E.  207,  15  N.  C. 
134 


WHO  COMES  UNDER  THE  ACT.  §29 

employed  to  do  repairs  in  a  private  house,  and  after  these  re-, 
pairs  were  finished  was  engaged  to  cut  down  some  trees  on  the 
grounds  near  the  house,  in  which  work  he  was  killed.4* 

One  employed  to  repair  a  tractor  and  to  do  other  work  about 
a  ranch  for  a  limited  time  was  a  casual  employee,  and  the  em- 
ployment was  not  in  the  regular  course  of  the  employer's  busi- 
ness.47 

One  engaged  in  carpenter  work  upon  a  farm  for  about  two 
days  was  a  casual  employee,  and  not  engaged  in  the  usual 
occupation  of  the  employer.48 

One  hired  for  a  temporary  and  limited  purpose  is  a  casual  em- 
ployee within  the  "West  Virginia  Act.49 

One  employed  to  help  move  and  erect  a  monument,  requiring 
less  than  two  days,  was  a  casual  employee.50 

A  casual  employee  working  for  an  employer  whose  principal 
business  is  hazardous,  is  within  the  New  York  Act.51 

But  where  the  company's  business  is  non  hazardous,  a  casual 
employee  is  not  within  the  act.52 

C.  A.  802;  Baer's  Exp.  &  Storage  Co.  v.  Ind.  Bd.,  282  111.  44,  118  N.  E.  412. 
1  W.  C.  L.  J.  512. 

46.  McCarthy  v.  Norcott,  43  Irish  L.  T.  17;  2  B.  W.  C.  C.  279;  Bedard 
v.  Sweinhart,  (la.),  172  N.  W.  937,  4  W.  C.  L.  J   377:  Black  v.  Wilson,  — 
Pa.  — ,  (1920).  112  Atl.  126. 

47.  Maryland  Casualty  Co.  v.  Pillsbury,  172  Cal.  748,  158  Pac.  1031,  15 
N.  C.  C.  A.  810. 

48.  State  ex  rel.  Lennon  v.  Dist.  Ct.  Douglas  Co.,  138  Minn.  103,  164,  N. 
W.  366, 15  N.  C.  C.  A.  811 ;  State  ex  rel.  Foss  et  al.  v.  Nelson,  —  Minn.  — , 
176  N.  W.   164,  5  W.  C.  L.  J.  547. 

49.  Western  Union  Telegraph  Co.  v.  Hickman,  248  Fed.  899,  2  W.  C.  L. 
J.  8. 

50.  Cousineau  v.  Black,  206  Mich.  479,  173,  N.  W.  203.  4  W.  C.  L.  J.  409, 
Ray  v.  Commercial  Acid  Co.,  —  Mo.  App.  — ,    (1921),  227  S.   W.  851. 

51.  Cummings  v.  Fabric   Co.,  184  N.  Y.  App.  456,  171  N.  Y.  S.  1046, 
18  N,  C.  C.  A.  137,  2  W.  C.  L.  J.  923. 

52.  Caller  v.  Republic  Novelly  Works,  180  N.  Y.  App.  Div.  762,  168  N. 
Y.  S.  263,  1  W.  C.  L.  J   691. 


135 


§29  WORKMEN'S  COMPENSATION  LAWS. 

A  finding  that  employment  was  casual  within  the  meaning  of 
the  Texas  Act  remits  both  employer  and  employee  to  their  com 
mon-law  rights.53 

A  man  aiding  movers  on  a  pick  up  job,  knowing  the  employ- 
ment to  be  only  for  one  particular  moving  job,  is  a  casual  em- 
ployee.64 

A  structural  iron  worker  employed  for  a  particular  job  only, 
requiring  three  or  four  days  was  engaged  in  casual  employment.55 

In  a  recent  Illinois  case  the  court  said,  "We  believe  the  Legis- 
lature intended  that,  where  one  is  employed  to  do  a  particular 
kind  of  work,  which  employment  recurs  with  regularity,  and 
where  there  is  a  reasonable  ground  that  such  recurrence  will 
continue  for  a  reasonable  time,  such  employment  is  not  casual. 
On  the  other  hand,  where  the  employment  for  one  job  cannot  be 
characterized  as  permanent  or  periodically  regular,  but  occurs  by 
chance,  or  with  the  intention  and  understanding  on  the  part  of 
both  employer  and  employee  that  it  shall  not  be  continuous,  it  is 
casual,"  and  held  that  where  it  was  understood  the  employment 
was  only  for  three  or  four  weeks,  the  servant,  while  injured  during 
the  course  of  such  work  was  a  casual  employee  !56 

It  was  held  that  one  not  on  the  payroll,  but  permitted  to  sleep 
and  remain  about  a  livery  barn  and  occasionally  do  small  jobs 
for  which  he  was  immediately  paid  was  a  casual  employee.57 

Where  a  man  was  hired  to  repair  a  well  at  $1  an  hour  and 
the  work  consumed  only  two  hours,  he  was  held  to  be  a  casual 
employee.58 

53.  Texas  Refining  Co.  v.  Alexander, — Texas  Civ.  App,  202  S.  W.  131, 
17  N.  C.  C.  A.  535;  Bridger  v.  Lincoln  Feed  &  Fuel  Co.,  —  Neb.  — ,  (1920), 
179  N.  W.  1020,  7  W.  C.  L.  J.  211. 

54.  Thede  Bros.  v.  Ind.  Comm.,  258  111.,  483,  121  N.  E.  172,  3  W.  C.  L. 
J.  242,  18  N.  C.  C.  A.   133. 

55.  Chicago  Great  Western  R.  Co.  v.  Ind.  Comm.  of  111.,  284  111.  573, 
120  N.  E.  508,  3  W.  C.  L.  J.  14,  18  N.  C.  C.  A.  132. 

56.  Consumer's  Mut.  Oil,  Producing  Co.  v.  Ind.  Com'n.  et  al.,  289  111. 
423,  124  N.  E.  608,  5  W.  C.  L.  J.  31;    Utah  Copper  Co.  v.  Indus.  Comm.  of 
Utah,  —  Utah  — ,    (1920),  193  Pac.    24,    7    W.  C.  L.  J.  147;    Herberg   v. 
Walton  Auto  Co.,  —  la.  — ,    (1920),  182  N.  E.  204. 

57.  Diamond  Livery  v.  Indus.  Com.,  289  111.  591,  124  N.  E.  609,  5  W. 
C.  L.  J.  33. 

58.  Otmer  v.  Perry,  94  N.  J.  4,  108  Atl.  369,  5  W.  C.  L.  J.  42S. 
136 


WHO  COMES  UNDER  THE  ACT.  §29 

Where  blasting  was  required  for  only  a  few  hours  in  the  con- 
struction of  a  new  road,  such  employment  was  held  to  be  casual.8* 

A  carpenter,  engaged  in  the  construction  of  a  house,  for  a  cor- 
poration owning  a  ranch,  is  engaged  in  the  usual  course  of  the 
business  of  the  employer  as  the  business  includes  the  construction 
and  repair  of  its  buildings.80 

The  employment  of  an  eleven-year-old  boy  to  work  in  a  store 
during  the  summer  and  to  run  errands  for  his  employer,  is  not 
casual  employment  within  the  meaning  of  the  statute,  which  does 
not  include  within  this  term  employments  for  a  definite  time,  as 
for  a  week,  a  month  or  longer.01 

The  claimant  need  not  prove  that  the  employment  was  not 
casual,  as  casual  employment  is  an  affirmative  defense,  to  be  proved 
by  the  employer.02 

After  completing  a  job  of  roofing  and  having  started  on  another 
job  for  a  different  employer,  an  employee  told  the  first  employer 
that  the  chimney  needed  a  little  work  done  on  it,  and  that  if  the 
employer  would  furnish  the  cement  he  would  do  the  work  free 
of  charge.  It  was  held  that  the  work  of  repairing  the  chimney 
was  casual.03 

One  who  was  employed  by  a  New  York  Boiler  Company  for 
35  years  in  setting  up  boilers  in  various  states,  was  not  engaged 
in  casual  employment  while  working  within  the  state  of  Maine 
so  as  to  preclude  the  application  of  the  Maine  Act."4 

A  miner  loaned  to  another  employer  according  to  a  custom,  for 
the  purpose  of  fighting  fire  in  a  mine,  was  under  the  latter 's  con- 
trol, and  entitled  to  compensation.  The  court  said:  "The  facts 
found  by  the  referee  justify  the  award.  A  master  may  loan  his 

59.  McLaughlin  v.  Ind.  Board,  281  111.  100,  117  N.  E.  819,  15  N.  C.  C.  A. 
803. 

60.  Miller  v.  Comm.,  32  Cal.  App.  250,  162  Pac.  651. 

61.  McDonald  v.  Great  Atlantic  &  Pacific  Tea  Co..  —  Conn.  — ,  (1920), 
111,  Atl.  65,  6  W.  C.  L.  J.  525. 

62.  Victor  Chemical  Works  v.  Industrial  Board,  274  HI.  11,  113  N.  E. 
173. 

63.  Bedard  v.  Sweinhart,  —  la.  — ,  (1919).  172  N.  W.  937,  4  W.  C.  L. 
WJ.  377. 

64.  Smith  v.  Heine  Safety  Boiler  Co.,  —  Me.  — ,  112  Atl.  516. 

137 


§29  WORKMEN'S  COMPENSATION  LAWS. 

servant,  with  the  latter 's  consent,  to  another  under  such  circum- 
stances as  to  create  for  the  time  a  new  relation  of  master  and 
servant;  the  regular  servant  of  one  may  thus  for  the  time  being 
become  the  special  servant  of  another,  and  that  was  done  here. 

"Where  one  person  lends  his  servant  to  another  for  a  particu- 
lar employment,  the  servant,  for  anything  done  in  that  particular 
employment,  must  be  dealt  with  as  a  servant  of  the  man  to  whom 
he  is  lent  although  he  remains  the  general  servant  of  the  person 
who  lent  him.  The  test  is  whether,  in  the  particular  service 
which  he  is  engaged  to  perform,  he  continues  subject  to  the  direc- 
tion and  control  of  his  master  or  becomes  subject  to  that  of  the 
party  to  whom  he  is  lent  or  hired.'  Puhlman  v.  Excelsior  E.  & 
S.  C.  Co.,  259  Pa.  393,  103  Atl.  218,  L.  R.  A.  1918E,  118;  26 
Cyc.  1285;  Bailey  on  Personal  Injuries  (2d  Ed.),  c.  3,  Par.  25. 
And  see  Grouse  et  al.  v.  Lubin,  260  Pa.  329,  103  Atl.  725. 

' '  The  deceased  when  injured  was  working  in  the  interest  of  the 
defendant  on  its  premises  and  under  its  control,  and  clearly,  for 
the  time  being,  its  servant.  That  his  wages  had  not  been  fixed 
is  unimportant;  the  law  will  imply  a  reasonable  compensation. 
The  finding  of  a  temporary  employment  by  defendant  is  not 
inconsistent  with  the  finding  of  a  general  employment  by  the 
Fick  Coke  Company,  and  being  one  of  fact  we  are  concluded 
thereby.  Gallagher  v.  Walton  Mfg.  Co.,  264  Pa.  29,  107  Atl.  327 ; 
Belmonte  v.  Connor,  263  Pa.  470,  106  Atl.  787 ;  Messer  v.  Manu- 
facturers' L.  &  H.  Co.,  263  Pa.  5,  106  Atl.  85. 

"Persons  whose  employment  is  casual  in  character  and  not  in 
the  regular  course  of  the  business  of  the  employer  are  excluded 
from  the  Workmen's  Compensation  Act  (article  1,  Par.  104,  P. 
L.  1915,  p.  736)  ;  but  we  cannot  adopt  the  suggestion  that  this 
case  comes  within  the  exception.  Putting  out  mine  fires  is  as 
much  in  the  regular  course  of  the  business  as  clearing  passage 
ways  or  pumping  water.  There  are  two  necessary  elements  to 
constitute  the  exception:  (1)  The  employment  must  be  casual  in 
character,  and  (2)  it  must  be  outside  of  the  regular  course  of  the 
business  of  the  employer.  As  we  find  this  within  such  course, 
it  is  not  necessary  to  determne  whether  the  employment  was  casual 
in  character  or  otherwise.  This  statute  mu^t  be  liberally  construed 
(Pater  v.  Superior  Steel  Co.,  263  Pa.  244,  106  Atl.  202),  which 
138 


WHO  COMES  UNDER  THE  ACT.  §30 

it  would  not  be  by  holding  that  the  extinguishment  of  fire  in  a 
coal  mine  was  a  work  outside  of  the  regular  course  of  the  mining 
business.  Being  overcome  by  noxious  gases  while  working  in  a 
mine  is  an  'accident'  within  the  Workmen's  Compensation  Law. 
Gurski  v.  Susquehanna  Coal  Co.,  262  Pa.  1,  104  Atl.  801."" 

Where  there  was  a  contract  for  a  fixed  rate  and  to  continue 
so  long  and  for  all  the  work  that  the  employer  had  to  do,  the 
employment  was  not  casual.86 

An  employee,  unloading  cars  of  coal  at  25  cents  a  ton  at  irreg- 
ular intervals  under  a  separate  employment  for  the  unloading 
of  each  particular  car,  is  a  casual  employee  and  not  entitled  to 
compensation  under  the  Nebraska  Act.07 

§  30.  Employments  not  Casual. — A  woodman  who  had  been 
trimming  trees  for  two  months  and  had  done  this  for  the  same  em- 
ployer for  a  number  of  seasons  was  not  engaged  in  casual  em- 
ployment.88 

Where  one  is  employed  to  do  a  particular  service  occuring 
somewhat  regularly  and  with  a  fair  expectation  of  its  continuance 
for  a  reasonable  period,  his  employment  is  not  casual.89 

A  farmer  and  teamster  engaged  by  a  canning  factory  to  do  haul- 
ing  at  such  times  as  he  might  be  needed  during  the  season  at  a 
certain  rate  of  pay,  the  hauling  being  a  necessary  part  of  the  em- 
ployer's business,  was  not  a  casual  employee,  since  the  question 
of  who  is  a  casual  employee  must  be  determined  with  principal 
reference  to  the  scope  and  purpose  of  the  hiring,  rather  than 

65.  Tarr  v.  Hecla  Coal  &  Coke  Co.  —  Pa.  — ,  109  Atl.  224,   (1920),  5 
W.  C.  L.  J.  904. 

66.  Johnson  v.  Choate  —  111.  — ,  119  N.  E.  972,  2  W.  C.  L.  J.  458. 

67.  Bridger  v.  Lincoln  Feed  &  Fuel  Co.  —  Neb.  — ,  (1920),  179  N.  W. 
1020,  7  W.  C.  L.  J.  211. 

68.  Smith  v.  Buxton,  (1915),  8  B.  W.  C.  C.  196;   11  N.  C.  C.  A.  383; 
Tombs  v.  Bomford,  W.  C.  Rep.  229,  106  L.  T.  N.  S.  823,  5  B.  W.  C.  C.  338. 

69.  Dyer  v.  James  Black  Masonry  etc.,  Co.,  192  Mich.  400,  158  N.  W. 
959;  Sabella  v.  BrazUierio,  86  N.  J.  L.  605,  91  A.  1032;   Jordan  v.  Wein- 
man, 167  Wis.  474,  167  N.  W.  810,  2  W.  C.  L.  J.  417;  Boyle  v.  Mahoney 
&  Tierney,  92  Conn.  404,   103  Atl.   127,  1  W.   C.   L.  J..  937,  18  N.  C.  C. 
A.  134. 

139 


§30  WORKMEN'S  COMPENSATION  LAWS. 

with  sole  regard  to  the  duration  and  regularity  of  the  service.70 

A  longshoreman,  called  frequently  to  serve  a  firm  of  ship 
owners  in  unloading  their  ship,  was  not  in  casual  employment. 
The  court  said :  ' '  While  this  class  of  work  was  not  constant,  de- 
pending on  there  heing  a  ship  of  the  prosecutor  in  port,  it  ap- 
pears that  the  deceased  was  frequently  called  upon  by  the  prosecu- 
tors to  serve  them  in  this  particular  character  of  work,  being 
one  of  a  class  of  stevedores,  ready  to  respond  when  called.  We 
think  this  supports  the  finding  that  the  employment  was  not 
•'casual'  within  the  meaning  of  the  word  as  expressed  in  the 
statute."71 

One  employed  on  a  sawmill,  on  such  a  day  as  it  operated  during 
a  period  of  four  months  was  not  a  casual  employee.72 

One  employed  for  an  indefinite  period  at  a  stipulated  sum  per 
day  to  work  on  a  contract,  for  the  erection  of  a  structural  steel 
building,  could  not  be  considered  in  casual  employment.73 

Piece  work  in  the  employer's  regular  business  is  not  or- 
dinarily considered  casual;74  nor  is  emploment  casual  because 
it  is  not  for  any  specified  length  of  time,75  or  for  one  job,  or 
or  that  the  deceased  was  injured  ihs  first  day.76 

In  California  and  Connecticut  an  arbitrary  rule  has  been  estab- 
lished to  the  effect  that  employment  of  less  than  ten  days  is  casual 

70.  State  Accident  Fund  v.  Jacobs,  134  Md.  133,  106  Atl.  255,  4  W.  C. 
L.  J.  91;  Uphoff  v.  Ind.  Bd.  of  111.,  271    111.  312,  111  N.  E.  128. 

71.  Sabella  v.  Brazilierio,    86  N.   J.  L.  505,  91   Atl.  1032,    6    N.  C.  C. 
A.  958. 

72.  Clements  v.  Columbus  Saw  ^vlill  Co.,  Ohio  Ind.  Comm.  Co.,  No.  10lf 
Oct.  21,  1914,  6  N.  C.  C.  A.  (note)  959;  Dyer  v.  James  Blaek  Masonry  & 
Contracting  Co.,  192  Mich.  400,  158  N.  W.  959;  Boyle  v.  Mahoney,  92  Conn. 
404,  103  Atl.,  127,  1  W.  C.  L.  J.  938. 

73.  Clements  v.  Columbus  Sawmill  Co.,  Vol.  1,  No.  7,  Bui.  Ohio.  Indus. 
Com.  p.  161,  6  N.  C.  C.  A.  (note)  959. 

74.  Scott  v.    Payne  Bros.    Inc.,  85    N.  J.  L.  Law,  446,  89    Atl.    927,  4 
N.  C.  C.  A.  682. 

75.  Schaeffer  v.  De  Grottola,  85  N.  J.  Law,  444,  89  Atl.  921,  4  N.  C.  C.  A. 
582;  Indus.  Comm.  v.  Funk,  —  Colo.  — ,  191  Pac.  125,  6  W.  C.  L.  J.  436; 
Mueller  v.  Oelkers  Mfg.  Co.,  36  N.  J.  L.  J.  117. 

76.  Coyle  v.    Mass.  Employers    Ind.  Assn.,  2  Mass.    Wk.  Comp.  Cases 
704;  Johnson  v.  Choate,  284  111.  214,  119  N.  E.  972,  18  N.  C.  C.  A.  138,  2 

140 


WHO   COMES   UNDER   THE    ACT.  §    31 

and  more  than  ten  days  is  not  casual,77  even  though  it  may  not  be 
in  the  usual  course  of  the  employer's  business.78 

In  Wisconsin  repairs  about  an  industrial  plant  are  with'-, 
casual  nor  without  the  usual  course  of  business.70 

A  laborer  employed  by  a  sewer  builder  over  a  period  of  five 
months,  and  who  was  injured  while  going  from  one  job  to 
another  was  not  a  casual  employee.  The  contract  of  employ- 
ment governing,  and  not  the  particular  work  being  done.80 

Where  the  contract  was  for  a  fixed  rate  of  wages  and  was  to 
continue  as  long  as  the  employer  had  any  work  to  be  done,  the 
employment  was  held  not  to  be  casual.81 

A  carpenter  foreman  engaged  in  the  construction  of  a  14 
room  house,  involving  several  months  of  continuous  work,  was 
not  casually  employed.82 

The  fact  that  the  employee  is  merely  "on  trial",  does  not 
make  his  employment  casual.88 

§  31.  Farm  Labor. — Since  all  the  American  Compensation 
Acts,  except  New  Jersey  and  Hawaii,  expressly  or  impliedly  ex- 

W.  C.  L.  J.  458,  119  N.  E.  972;  Thompson  v.  Twiss,  90  Conn.  444.,  97  All. 
328;  American  Steel  &  Foundries  Co.  v.  Ind.  Bd.,  119  N.  E.  902,  284  111.  »», 
2  W.  C.  L.  J.  462;  Doherty  v.  Grosse  Isle,  205,  Mich.  592,  172  N.  W.  596.  4 
W.  C.  L.  J.  222 ;  Marshall  Field  &  Co.  v.  Ind.  Comm.  of  111.,  285  111.  333,  120 
N.  E.  773,  3  .W  C.  L.  J.  105,  18  N.  C.  C.  A.  134;  Cinofsky  et.  al.  v.  Ind. 
Comm.  et  al.,  290  111.  521,  125  N.  E.  286,  5  W.  C.  L.  J.  185;  Indus.  Comm. 
v.  Funk,  —  Colo.  — .  191  Pac.  125,  6  W.  C.  L.  J.  436. 

77.  Jones  v.    Indus.  Comm.  —  Cal.  App.  — ,  200  Pac.  Ill,  Conn.  Act  § 
7»/z(b);  Augustine  v.  Cotter,  2  Cal.  I.  A.  C.  Dec.  59;   Brain  v.  Eisfelder, 
2  Cal.  I.  A.  C.   Dec.  30;  Trenholm   v.  Hough,  1  Cal.  I.   A.   C.   Dec.  260. 

78.  Armstrong  v.  Ind.  Ace.  Comm.,  36  Cal.  App.  1,  171  Pac.  321,  1  W.  U. 
L.  J.  922. 

79.  F.  C.  Cross  &    Bros.  Co.    v.  Ind.   Comm.,  167  Wis.   612,  167    N.  W. 
8C9,  2  W.  C.  L.  J.  415;  Holman  Creamery  Ass'n.  v.  Ind.  Comm.,  167  Wis. 
470,  167  N.  W.  808,  2  W.  C.  L.  J.  412. 

80.  Scully  v.  Ind.  Comm.  of  111.,  284  111.  567,  120  N.  E.  492,  18  N.  C.  C.  A. 
136,  3  W.  C.  L.  J.  30. 

81.  Johnson  v.  Choate,  284  111.  14,  119  N.  E.  972.  2  W.  C.  L.  J.  458. 

82.  -Miller  &  Lux  v.  Industrial  Ace.  Comm.,  —  Cal.  App.  — ,  162  I'ac. 
651,  14  N.  C.  C.  A.  1087. 

83.  Mueller  v.  Oelkers  Mfg.  Co.,  36  N.  J.  L  J   117. 

141 


§  31  WORKMEN'S  COMPENSATION  LAWS. 

elude  farm  labor  from  their  operation,  the  question  of  what 
may  or  may  not  properly  be  considered  such  labor  within  the 
intent  of  the  various  acts  is  naturally  of  importance.  The  exclusion 
of  farm  labor  was  perhaps  based  more  on  legislative  expedience 
than  upon  sound  reason,  as  the  accidental  injuries  suffered  in  this 
class  of  employment  ranks  next  to  that  of  railroad  employment, 
according  to  a  report  of  the  Wisconsin  Labor  Bureau,  while  other 
American  and  also  European  experience  proves  quite  conclusively 
that  agriculture  is  a  highly  hazardous  employment.  It  is  not 
excluded  from  the  acts  of  the  more  important  European  countries.8* 
It  may  be  said,  however,  that  the  farm  industry  is  perhaps  less  able 
than  others  to  add  the  cost  of  compensation  insurance  to  the 
market  price  of  its  product  and  pass  it  on  to  the  consumer  be- 
cause that  price  is  as  a  rule  fixed  by  those  in  control  of  distant 
markets,  and  is  perhaps  also  more  quickly  affected  by  the  law  of 
supply  and  demand  than  the  products  of  most  other  industries. 

"Employment  of  farm  labor"  and  "agricultural  employ- 
ments" are  used  as  more  or  less  synonymous  terms  in  the  various 
compensation  acts.  Thus  the  court  in  an  Alabama  case  quotes 
the  following  definition  from  Webster.  ''Agriculture  is  the 
art  or  science  of  cultivating  the  ground,  especially  in  fields  ov 
in  large  quantities,  including  the  preservation  of  the  soil,  the 
planting  of  seeds,  the  raising  and  harvesting  of  crops,  and  the 
rearing,  feeding  and  management  of  live  stock ;  tillage ;  hus- 
bandry; farming."85  "The  common  hired  man  on  a  farm  is 
required  to  perform  a  great  variety  of  work.  His  duties  are  not 
confined  to  plowing,  planting  and  harvesting.  Tilling  the  soil 
and  gathering  in  the  crops  may  be  the  principal  work  of  the 
farm  laborer,  but  they  are  by  no  means  his  exclusive  work.  All 
the  multifarious  work  of  operating  a  farm  must  be  done  by 
somebody;  and  who  is  to  do  it  except  the  farm  laborer?  It  is, 
of  course,  necessary  to  keep  the  farm  machinery  in  repair — the 
reapers,  mowers,  corn  harvesters,  sulky  plows,  wagons,  harness, 

84.  Great  Britain,  Germany,  Austria  Hungary,  Italy. 

85.  Dillars  v.  Webb,  55  Ala.  474;    Springer  v.  Lewis,  22  Pa.  191;-  Farm 
defined  Winn  v.  Cabot,  18  Pick.  (Mass.)  553;    Wheeler  v.  Randall,  6  Mete. 
(Mass.)    529;    Commonwealth  v.  Carmalt,  2  Binn.   (Penn.)    235    Segge- 
bruch  v.  Ind.  Comm.  of  111.,  123  N.  E.  276,  4  W.  C.  L.  J.  156. 

142 


WHO  COMES  UNDER  THE  ACT.  §   31 

etc.  It  is  just  as  necessary  to  keep  the  farm  buildings  in  repair, 
and  occasionally  to  make  small  additions  to  them.  This  is 
part  of  the  routine  work  of  the  farm  laborer ;  just  as  much  so  as 
milking  the  cows,  cleaning  off  the  horses,  building  fences,  putting 
a  new  point  on  the  plow,  doctoring  a  sick  horse,  butchering  the 
hogs,  greasing  the  wagons,  assisting  the  threshers,  driving  the 
team  to  market  and  innumerable  other  familiar  duties. 

"Is  the  hired  man,  who  pounds  his  finger  while  shingling  the 
pig  pen,  any  the  less  a  'farm  laborer'  than  when  he  pounds  his 
finger  while  building  a  fence?  It  is  the  duty  of  a  farm  laborer 
to  build  a  load  of  hay ;  it  is  likewise  his  duty  to  help  shingle  the 
barn  to  protect  the  hay  from  the  elements.  Both  processes  are 
necessary  in  order  to  preserve  the  hay.  Both  are  essentially 
within  the  scope  of  the  duties  of  the  farm  laborer,  and  it  makes 
no  difference  in  principle  whether  he  breaks  his  leg  falling  from 
the  roof  of  the  barn  or  the  load  of  hay. ' ' 8e 

It  has  been  held  that  the  fact  that  a  farm  hand  was  engaged 
in  logging  in  the  winter  did  not  take  his  work  out  of  the  class 
of  "farm  labor"  as  used  in  the  compensation  act;87  that  an  em- 
ployee injured  while  operating  a  corn  shredder  for  his  employer, 
who  was  operating  under  a  contract  with  a  farmer  to  do  such 
work,  was  engaged  in  farm  labor  even  though  the  employer  was 
operating  the  corn  shredder  as  an  independent  contractor  for 
profit,88  that  an  employee  of  a  drug  manufacturer  which  oper- 
ated a  farm  in  furtherance  of  its  business  on  which  the  employee 
worked  was  a  farm  laborer;89  that  one  temporarily  engaged  in 
making  repairs  on  a  dairy  barn,  though  his  regular  occupation 

86.  Coleman  v.  Bartholomew,  175  App.  Div.  122,  161  N.  Y.  Supp.  660; 
Smith  v.  Coles,  93  L.  T.  754,  8  W.  C.  C.  116;    In  re  Kasney,  104  N.  E.  438, 
217  Mass.  5;    Kauri  v.  Messner,  198  Mich.  126,  164  N.  W.  537,  17  N.  C.  C. 
A.  467.    Contra,  State  v.  Nelson,  —  Minn.  — ,  176  N.  W.  164,  5  W.  C.  L.  J. 
547;    Uphoff  v.  Indus.  Bd.,  271  111.  312,  111  N.  E.  128. 

87.  Brockett  v.  Mietz,  184  App.  Div.  342,  171  N.  Y.  S.  412.  2  W.  C.  L.  J. 
688. 

88.  Slycord  v.  Horn,  179  Iowa  936,  162  N.  W.  249,  A  1  W.  C.  L.  J.  589, 
16  N.  C.  C.  A.  592. 

89.  Shafer  v.  Parke.  etc.  Co.,  192  Mich.  577,  159  N.  W.  304;  Saggebrucli 
v.  Ind.  Comm.  of  111.,  123  N.  E.  276,  4  W.  C.  L.  J.  156. 

143 


§  31  WORKMEN'S  COMPENSATION  LAWS. 

was  that  of  farm  laborer,  was  excluded  from  the  act;90  that  a 
person  engaged  to  milk  cows  and  take  care  of  poultry  is  a  farm 
laborer;91  that  a- teamster  engaged  to  haul  to  town  the  wood 
and  brush,  which  a  farmer  was  cutting  down  to  clear  his  land, 
was  a  farm  laborer  ;92  that  blasting  out  stumps  may  be  agricul- 
ture work;93  that  one  hired  to  clear,  land  to  be  set  out  with 
fruit  trees  is  a  farm  laborer  ;94  that  a  farm  hand  ordered  to  haul 
a  load  of  lumber  from  a  point  in  a  city  to  a  railroad  station  for 
shipment  to  another  farm  of  his  employer  is  still  a  farm  labor- 
er;95 that  the  employees  of  the  owner  of  a  hay  press  who  go 
from  farm  to  farm  to  bale  hay  at  a  stipulated  price  are  farm  la- 
borers.96 

The  owner  of  a  farm  is  not  within  the  act  when  building  a 
barn  upon  the  farm.  As  stated  by  the  court,  "If  this  was  a 
work  within  the  usual  course  of  their  business  or  occupation, 
then  it  was  farm  labor,  and  if  it  was  farm  work,  there  is  no  es- 
cape from  the  conclusion  that  one  performing  it  was  a  'farm 
laborer'  and  'farm  laborers'  have  been  denied  the  benefit  of 
of  the  Compensation  Act."97 

One  engaged  as  a  janitor,  and  whose  duties  included  the  care 
of  the  trees  and  grounds,  and  who  was  injured  while  trimming 
a  tree,  was  engaged  in  horticulture  within  the  meaning  of  the 
California  Act  and  hence  not  within  the  Act.98 

Where  a  group  of  farmers  purchased  a  threshing  machine 
primarily  for  their  own  use,  "such  primary  purpose  become? 

90.  Coleman  v.  Bartholomew,  175  App.  Div.  122,  161  N.  Y.  S.  560. 

91.  Wolfe  v.  E.  W.  Scripps,  1  Cal.  Ind.  Ace.  Com.  (Part  II)   509. 

92.  Hanson  v.  Scott,  2  Cal.  Ind.  Ace.  Com.  721. 

93.  Martin   v.   Russian   River   Fruit   and   Land   Co.,   1   Cal.   Ind.   Ace. 
Com.  (Part  II)  18. 

94.  Whitney  v.  Charles  Peterson,  1  Cal.  Ind.  Ace.  Com.  (Part  II)   306. 

95.  Ratcliff  v.  C.  F.  De  Witt  Co.,  1  Cal.  Ind.  Ace.  Com.  (Part  II)   639. 

96.  Andrus  v.  Atkinson   (1916),  3  Cal.  Ind.  Ace.  Com.  224;    Morris  v. 
Spears,  1  Cal.  Ind.  Ace.  Com.  224;    Vincent  v.  Louis,  2  Cal.  Ind.  Ace.  Com. 
168;  Neimeyer  v.  Volger,  2  Cal.  Ind.  Ace.  Com.  335;    Threshing  machine 
case,  State  v.  Watonwan   (Minn.)   168  N.  W.  130,  2  W.  C.  L.  J.  522. 

97.  State  ex  rel.  Foss  et  ux.  Nelson  Dist.  Judge,  145  Minn.  — ,  176, 
N.  W.  164,  5  W.  C.  L.  J.  547. 

98.  George  v.  Ind.  Ace.  Comm.  178  Cal.  733,  174  Pac.  653,  2  W.  C.  L.  J. 
748. 

144 


WHO  COMES  UNDER  THE   ACT.  §    31 

controlling  in  determining  the  nature  and  character  of  their 
business  within  the  meaning  of  the  Industrial  Act,"  and  the 
court  held  that  one  .employed  upon  the  machine  was  engaged  in 
farm  labor." 

But  a  servant  employed  to  poison  prairie  dogs  for  an  employer 
engaged  in  cattle  raising  is  not  a  farm  laborer.1 

A  farm  laborer  who  incidentally  helps  harvest  ice  to  be  stored 
for  use  on  the  farm  is  engaged  in  farm  labor.2 

One  assisting  another  who  is  driving  a  caterpillar  engine  at- 
tached to  a  harrow  is  engaged  in  farm  work  and  not  in  the  op- 
eration of  farm  machinery  within  the  exception  of  an  insurance 
policy  excluding  such  operation.3 

A  farmer  does  not  become  a  bridge  builder  by  building  a 
bridge  on  his  farm.4 

It  has  been  held  that  the  exemption  of  farm  laborers  does  not 
violate  the  clause  of  the  constitution,  requiring  equal  protection 
of  the  laws.5 

One  hauling  garbage  in  his  own  truck,  to  his  employer's  farm, 
where  it  was  fed  to  pigs,  was  held  to  be  a  "farm  laborer."  8 

§  32.  Employments  Held  not  to  be  Farm  Labor. — It  h&s  been 
held  that  one  employed  by  the  owner  of  a  threshing  outfit  to  go 
from  farm  to  farm  and  thresh  as  a  business  is  not  a  farm  labor- 
er;7 that  a  carpenter  who  sometimes  did  farm  labor  when  there 

99.  Jones  v.  Ind.  Comm.,  —  Utah  — ,  187  Pac.  833,  5  W.  C.  L.  J.  747; 
State  er  rel.  John  Bykle  v.  Dist.  Court,  140  Minn.  398,  168  N.  W.  130, 
16  N.  C.  C.  A.  596.  But  see  note  7,  sec.  32. 

1.  C.  C.  Slaughter  Cattle  Co.  v.  Pastrana,  —  Tex.  Civ.  App.  — ,  (1919) 
217  S.  W.  749,  5  W.  C.  L.  J.  599. 

2.  Muller  v.  Little,  173  N.  Y.  S.  578,  3  W.  C.  L.  J.  500. 

3.  Maryland  Casualty  Co.  v.  Indus.  Ace.  Comm.  —  Cal.  — ,  173  Pac.  993 

4.  National  Ace.  Society  v.  Taylor,  42  111.  App.  97. 

5.  N.  Y.  C.  R.  R.  Co.  v.  White,  243  U.  S.  247. 

6.  State  Indus.  Comm.  v.  Wiseman,  183  N.  Y.  S.  112   (1920),  6  W.  C. 
L.  J.  481. 

7.  In  re  Boyer,  64  Ind.  App.  — ,  117  N.  E.  507.  1  W.  C.  L.  J.  45,  16  N.  C.  C. 
A.  592;    White  v.  Loades,  178  App.  Div.  236,  164  N.  Y.  8.  1023;    Vincent  v. 
Taylor  Bros.,  180  App.   Div.  563,  168  N.   Y.  S.  287,  1  W.  C.  L.  J.  692; 
Connolly  v.  Peoples,  G.  L.  A  C.  Co..,  260  111.  162;     Reed  v.  Smith  Wikinson 
Co.,  (1910),  3  B.  W.  C.  C.  223. 

145 

W.  C.— 10 


§  32  WORKMEN'S  COMPENSATION  LAWS. 

was  no  carpenter  work  to  be  done,  was  not  a  farm  laborer  when 
injured  while  doing  carpenter  work;8  that  a  carpenter  engaged 
by  a  farmer  to  build  a  corncrib  was  not  a  farm  laborer  ;9  that  a 
painter  engaged  to  paint  the  roof  of  a  farm  building  was  not  a 
farm  laborer;10  that  a  machinist  repairing  a  traction  engine  on 
a  farm  is  not  engaged  in  farm  labor;11  that  one  engaged  in 
building  a  reservoir  for  irrigation  purposes  is  not  a  farm  labor- 
er;12 that  inspection  of  farms  with  a  view  of  exchanging  a 
garage  for  them  is  not  farm  labor.13 

The  California  Workmen's  Compensation  Act  excludes  farm 
laborers,  but  under  the  Roseberry  Act  of  1911  the  farm  employee 
may  recover  where  the  injury  is  due  to  the  negligence  of  a  fel- 
low servant,  the  Compensation  Act  not  having  repealed  the  ap- 
plication of  the  Roseberry  Act  to  farm  employees.14 

One  engaged  as  game  keeper  to  protect  game  from  poachers 
is  not  engaged  in  farm  labor.16 

Nor  is  a  carpenter  engaged  as  foreman  for  construction  of 
ranch  buildings  engaged  in  farm  labor.16 

One  engaged  in  labor  upon  a  trout  farm,  in  the  propagation  of 
trout  for  domestic  purposes,  was  not  a  farm  laborer.  The  fact 
that  the  business  was  one  prohibited  by  statute  did  not  preclude 
the  employee  from  recovering  compensation.17 

8.  Feehan  v.  Tevis,  2  Cal.  Ind.  Ace.  Com.  452;    11  N.  C.  C.  A.  377; 
Matis  v.  Schaeffer,  —  Pa.  — ,  1921,  113  Atl.  64,  8  W.  C.  L.  J.  140. 

9.  TJphoff  v.  Ind  Bd.  of  111.,  Ill  N.  E.  128,  271  111.  312,  13  N.  C.  C.  A.  80; 
Griswold    v.    City    of   Wichita,    99    Kan.    502,    162    Pac.    276;     Reily   v. 
Newhall  Lumber  &  Farming  Co.,  (1916),  3  Cal.  Ind.  Ace.  Com.  208;  Elaine 
v.  McKinsey,  1  Cal.  Ind.  Ace.  Com:  641,  11  N.  C.  C.  A.  368. 

10.  McComsey  v.  Simmons,  (1916),  7  N.  Y.  St.  Dep.  Rep.  433. 

11.  Snow  v.  Harris,  2  Cal.  Ind.  Ace.  Comm.  348;    11  N.  C.  C.  A.  368. 

12.  Howell  v.  Lanfair,  5  Cal.  Ind.  Ace.  Com.  176. 

13.  Evans  v.  Bay  Cities  Garage  Corp.,  5  Cal.  Ind.  Ace.  Com.  122. 

14.  Burns  v.  Southern  Pac.  Co.,  —  Cal.  App.  — ,  185  Pac.  875,  5  W.  C.  L. 
J.  358. 

15.  Shatter  Estate  Co.  v.  Ind.  Ace.  Com'n.,  175  Cal.  522,  166  Pac.  24. 

16.  Miller  Lux  Inc.  v.  Ind.  Ace.  Com'n,  32  Cal.  App.  250,  162  Pac.  651, 
16  N.  C.  C.  A.  600. 

17.  Krobitzsch  v.  Ind.  Ace.  Com'n.  (Cal.),  185  Pac.  396,  5  W.  C.  L.  J.  136. 

H6 


WHO  COMES  UNDER  THE  ACT.  §    33 

A  man  engaged  in  labor  upon  a  farm  bought  and  improved  for 
speculative  purposes  and  upon  which  no  farming  was  being 
done,  was  not  engaged  in  farm  labor.18 

A  cattle  ranch  laborer  is  not  a  farm  laborer,  within  the  mean- 
ing of  the  Texas  act." 

§  33.  Domestic  Servants. — The  law  relating  to  this  question 
has  not  kept  pace  with  changed  conditions  wrought  by  time,  and 
comes  to  us  today  tainted  too  much  by  the  conditions  existing 
many  generations  ago,  when  the  lord  or  baron  maintained  intra 
moenia,  a  class  of  servants  taking  their  name  from  the  fact  that 
they  lived  "within  the  walls."  Today  this  class  of  servants  is 
usually  denominated  "domestic  servants."  They  take  their  name 
from  the  character  of  work  performed,  and  not  from  the  place 
where  they  eat  or  sleep  or  customarily  reside  when  not  actually 
performing  services.  The  test,  therefore,  of  whether  or  not  a 
servant  is  a  "domestic"  is  the  character  of  work  performed  by 
him  in  or  about  the  home  of  the  employer. 

Domestic  means  attached  to  the  occupations  of  the  home  or 
the  family,  pertaining  to  home  life,  or  to  household  affairs  or 
interests.20  Domestics,  "those  who  reside  in  the  same  house  with- 
those  they  serve."21  Servants  and  domestics  are  "those  who 
receive  wages  and  stay  in  the  house  of  the  person  paying  and 
employing  them,  for  his  service  or  that  of  his  family;  such  are 
valets,  footmen,  cooks,  butlers  and  others  who  reside  in  the 
house."22 

Domestic  servants  are  expressly  or  impliedly  excluded  from  the 
acts  of  all  the  American  States,  except  New  Jersey.23  They  are 
included  in  the  British  Compensation  Act.  The  decisions  on  the 

18.  O'Dell  v.  Bowman  et  al.,  189  App.  Div.  386,  179  N.  Y.  S.  592,  5  W. 
C.  L.  J.  439. 

19.  C.  C.  Saughter  Cattle  Co.,  v.  Pastrana,  —  Tex.  Civ.  App.  — ,  217 
S.  W.  749  6  W.  C.  L.  J.  599. 

20.  Century  Dictionary,  14  Cyc.  828. 

21.  Bouvler. 

22.  Cook  v.  Dodge,  6  La.  Ann.   276. 

23.  Rucker'v.  Reed,  39  N.  J.  L.  J.  48,  12  N.  C.  C.  A.  252. 

147 


§  34  WORKMEN'S  COMPENSATION  LAWS. 

subject  of  domestic  servants  in  relation  to  compensation  acts  are 
few  and  unsatisfactory. 

It  has  been  held  that  one  engaged  to  do  work  about  the  house 
and  grounds  of  his  employer,  who  did  not  live  on  the  premises 
and  did  no  work  in  the  house  is  not  a  domestic  servant;24  that  a 
cook  employed  in  a  boarding  house,  is  not  a  domestic  servant;25 
that  an  undercoachmen,  who  boards  with  his  employer's  coachman 
and  sleeps  in  a  room  over  the  coachhouse  is  not  a  domestic;26  that 
one  engaged  to  perform  various  services  about  the  house  and 
premises  including  attending  to  the  furnace  and  mowing  the 
lawn,  who  sleeps  in  the  house  and  eats  at  the  family  table  is  a 
domestic  servant  ;27  that  a  porter  in  a  saloon,  who  was  sent  to 
wash  the  windows  of  an  apartment  above  the  saloon,  where  the 
proprietor  resided  was  in  domestic  service,  and  not  entitled  to 
compensation  ;28  that  a  man  who  made  his  living  by  attending 
furnaces  of  several  homes  was  a  domestic  servant.29  Under  the 
common  law  a  domestic  is  a  servant  or  hired  laborer  living  with 
the  family  of  his  employer;30  but  the  term  does  not  extend  to 
workmen  and  laborers,  exclusively  employed  outside  of  the  house.3* 
Nor  is  a  maid  who  does  general  house  work  and  in  addition  waits 
upon  patients  in  a  sanitarium  engaged  in  domestic  service.152 

§  34.  Persons  Whose  Average  Annual  Earnings  Exceed  a 
Stated  Amount,  Excluded. — There  are  only  .a  few  of  the  Ameri- 
can Compensation  Acts,  whose  application  is  limited  to  employees 
or  workmen  and  officials  who  earn  less  than  a  specified  amount.33 

24.  Cleveand  v.  Hastings,  2  Cal.  Ind.  Ace.  Com.  18. 

25.  Comaskey  v.  Coleman,  3  Cal.  Ind.  Ace.  Com.  95. 

26.  In  re  Howard,  63  Fed.  263. 

27.  Legal  Op.  la.  Ind.  Com.   (1915),  16. 

28.  Castallotti  v.  McDonnel,  1  Cal.  Ind.  Ace.  Com.  (Part  II)  351,  11  N. 
C.  C.  A.  375. 

29.  Bui.  No.  9.  Minn.  Dep.  Labor  &  Ind.  21. 

30.  10  Am.  &  Eng.  Ency.  4. 

31.  Wakefield  v.  State,  41  Tex.  556. 

32.  Gerhardt  et.  al.  v.  Ind.  Ace.  Comm.  of  Cal.  185  Pac.  307,  5  W.  C. 
L.  J.  151. 

33.  Missouri  $3600;  New  Jersey  Chapt.  145  Laws  of  1913,  $1200;  Mary 
land  $2000.00 ,  Idaho  &  Utah  not  applicable  to  public  officials  who  receive 

.148 


WHO  COMES  UNDER  THE  ACT.  §   35 

The  reason  underlying  such  provisions  is  economically  sound,  as 
it  is  considered  that  when  an  industry  pay^  I!H  workmen  wages 
beyond  a  specified  amount,  the  cost  of  industrial  accidents  is  there- 
by paid  in  advance,  by  the  consumer  to  the  worker  and  like  the 
employer  such  employees  may  properly  be  expected  to  save  part 
of  their  earnings  for  old  ago  and  periods  of  possible  disability. 

It  would  appear  that,  if  an  employee  engaged  in  two  classes  of 
employment  or  was  employed  by  several  employers,  and  the  sum 
and  total  of  all  his  earnings,  exclusive  of  income  independent  of 
earnings,  exceeded  the  stated  sum  per  annum,  for  the  year  pre- 
ceeding  his  injury,  he  would  not  be  entitled  to  the  benefits  of  the 
act. 

Under  the  British  Act  only  employees  earning  less  than  £250 
a  year  are  covered  unless  they  are  engaged  in  a  manual  labor,  in 
which  event  the  amount  of  their  earnings  is  immaterial.  It  has 
been  held  that  the  manager  of  a  colliery,  who  received  £400  a 
year,  but  did  no  manual  labor,  was  not  a  "workman"  within  the 
meaning  of  the  British  Act.34  The  same  decision  was  rendered 
in  the  case  of  a  chemist,  a  considerable  part  of  whose  work  was 
manual  labor.86  In  the  case  of  a  ship  captain,  whose  salary  ex- 
ceeded £250  a  year,  but  whose  contract  provided  for  a  reduction 
below  that  amount  in  case  of  damage  to  the  ship,  it  was  held  that 
upon  the  loss  of  the  ship  the  wages  of  the  captain  must  be  con- 
sidered at  the  reduced  amount,  which  therefore  entitled  his  de- 
pendents to  compensation.83 

§  35.  Officials  of  Political  Subdivisions. — The  acts  of  a  num- 
ber of  states  exclude  officials  of  political  subdivisions.  The  de- 
cisions are  somewhat  in  conflict  on  the  question  of  who  may 
properly  be  classed  as  such  officials. 

in  excess  of  $2400.00  a  year;  Porto  Rico  $1500.00;  Hawaii  not  applicable 
to  public  officials  who  receive  in  excess  of  $1800.00  a  year  and  private 
employees  whose  weekly  remuneration  exceeds  $36.00,  N.  Dak.  §  2. 

34.  Simpson  v.  Ebbw-Vale  Steel,  Iron  &  Coal  Co.,  92  L.  T.  282,  7  W.  C. 
C.  101. 

35.  Bagnall  v.  Levinstein  (1906),  96  L.  T.  184;   9   W.  C.  C.  100. 

36.  Williams  v.  S.  S.  Martime  (1915),  8  B.  W.  C.  C.  269. 

149 


§  35  WORKMEN'S  COMPENSATION  LAWS. 

The  able  jurist,  Judge  Cooley,  states  that :  ' '  The  officer  is  dis- 
tinguished from  the  employee  in  the  greater  importance,  dignity 
and  independence  of  his  position,  in  being  required  to  take  an 
official  oath;  and  perhaps  to  give  an  official  bond;  in  the  liabili- 
ty to  be  called  to  account  as  a  public  offender  for  misfeasance 
or  nonfeasance  in  office;  and  usually,  though  not  necessarily,  in 
the  tenure  of  his  position. ' ' 37 

The  question  has  arisen  in  several  states  whether  policemen 
were  public  officers  or  employees  of  a  city.  In  a  Michigan  case 
the  court  said:  "The  decision  of  the  Industrial  Board  can  be 
affirmed  only  if  it  is  found  that  a  policeman  of  the  city  of  Pon- 
tiac,  under  the  facts  stipulated,  is  an  employee  and  not  a  public 
officer.  Policeman  generally  are  charged  with  the  special  duty  of 
protecting  the  lives  of  citizens  within  certain  territorial  limits, 
and  of  preservng  peace.  The  preservation  of  the  public  peace 
being  a  matter  of  public  concern,  it  has  therefore  been  said  that 
policemen  may  be  considered  as  public  officers.  As  a  rule,  they 
are  appointed  under  authority  given  by  the  State,  and  therefore 
have  generally  not  been  regarded  as  servants  or  agents  or  as 
otherwise  bearing  a  contractual  relation  to  the  municipality." 
The  court  held  in  this  case  that  as  public  officers,  policemen  were 
not  "employees"  within  the  scope  of  the  act.  The  court  cited 
Schmitt  v.  Dooling,  145  Ky.  240,  140  S.  W.  197.  In  that  case  the 
Kentucky  Court  of  appeals  in  unmistakable  terms  held  that  both 
policemen  and  firemen  were  public  officers.38 

But  in  a  more  recent  Michigan  case  it  was  held  that  firemen 
and  subofficers  having  minor  authority  over  others  are  not  offi- 

37.  Throop  v.  Langdon,  40  Mich.  673.     See  also  United  States  v.  Mau- 
rice Fed.  Gas.  No.  15747;  In  re  Robert  H.  Barclay  2nd  A.  R.  U.  S.  C.  C. 
67.  In  re  Edwin  H.  Jewel  2nd   A.  R.  U.  S.  C.  C.  68. 

38.  Blynn  v.  City  of  Pontiac,  185  Mich.  35,  151  N.  W.  681,  8  N.  C.  C.  A. 
793;  State  Board  of  Agriculture  or  regents  of  university  are  not  under 
the  act.    Agler  v.  Mich.  Agriculture  College,  181  Mich.  559,  148  N.  W. 
341;    Albee  v.  Weinberger,  69  Ore.  326,  138  Pac.  859;    Shelmadine  v.  City 
of  Elhardt,  —  Ind.  App.  — ,   1921,   129   N.   E.   878;     Reising  v.   City  of 
Portland,  57  Ore.  295,  111  Pac.  377.  But  see  Labelle  v.  Grosse  Point  Shores 
167  N.  W.  923,  206  Mich.  371;    McNally  v.  City  of  Saginaw  Mich.,  163  N. 
W.  1015;   McCarl  v.  Borough  of  Houston   (Pa.)  106  Atl.  104,  3  W.  C.  L. 
J.  789.    Mich.  Act.  Am.  1921,  Part  I,  §  7. 

150 


WHO  COMES  UNDER  THE  ACT.  §   35 

cials  of  a  city  organized  under  home  rule  law,  within  the  mean- 
ing of  the  workmen's  compensation  act.89 

In  an  Indiana  case  the  court  approached  this  subject  from  a 
different  angle  in  substance  holding  that  the  intention  of  the 
parties  governed.  The  court  disregarded  the  principle  that  an 
insurance  contract  cannot  enlarge  the  coverage  of  the  act.  The 
court  said:  "It  is  appellant's  contention  that  George  A.  Con- 
duitt  was  an  officer  and  not  an  employee  of  the  city  of  New  Cas- 
tle, and  therefore  that  the  appellant  was  not  liable  under  the 
policy  issued  to  the  city. 

"We  do  not  deem  it  necessary  to  enter  into  a  general  discussion 
of  this  subject.  It  appears  that,  at  the  time  the  insurance  policy 
was  issued,  it  was  the  intention  of  the  appellant  that  the  policy 
should  cover  city  firemen.  The  appellant  and  the  city  contracted 
with  that  idea  in  mind.  The  salaries  of  the  fireman  were  taken 
into  consideration  in  fixing  the  amount  of  the  premium  to  be  paid 
appellant  for  such  policy.  The  appellant  accepted  and  retained 
such  premium,  treating  the  said  firemen  as  employees.  It  pre- 
pared or  caused  to  be  prepared  the  report  of  George  A.  Con- 
duitt's  death  to  be  filed  with  the  Industrial  Board.  It  prepared 
and  caused  the  compensation  agreement  between  the  city  and 
the  dependents  of  George  A.  Conduitt  to  be  entered  into  and  ap- 
proved by  the  Industrial  Board.  After  approval  of  said  agree- 
ment for  compensation,  the  appellant  made  104  weekly  payments 
in  accordance  with  the  award  made  by  the  board.  Under  the 
facts  and  circumstances  as  disclosed  by  the  record,  we  are  of  the 
opinion  that  in  so  far  as  the  appellant  is  concerned  George  A. 
Conduitt  was  an  employee  of  the  city  of  New  Castle."  *° 

It  has  been  held  that  a  deputy  surveyor  whose  duties,  salary 
and  fees  are  fixed  by  statute  is  an  official  and  not  an  employee  ;41 
that  a  policeman  of  a  city  is  a  public  officer  holding  his  office  as 
a  trust  from  the  state,  and  not  as  a  matter  of  contract  between 

39.  McNally  v.  City  of  Saginaw,  —  Mich.  — ,  163  N.  W.  1015,  A  1  W.  C. 
L   J.  971.     See  Am.  1921,  Part  I,  §  7,  Mich.  Act. 

40.  Frankfort  Gen.  Ins.  Co.  v.  Conduitt,  —  Ind.  App.  —  (1920),  127  N.  B. 
212,  6  W.  C.  L.  J.  25,  Nev.  Act.  Am.  1921,  §  7»/,. 

41.  Emerson  v.  Mass.  Employees  Ins.  Ass'n.  2  Mass.  Wk.  Comp.  Cases, 
181.  Firemen  were  regarded  as  public  officers,  223  Mass.  270,  111  N.  E.  788. 

151 


§  35  WORKMEN'S  COMPENSATION  LAWS. 

himself  and  the  city;42  that  an  award  of  compensation  could 
not  be  made  by  the  Illinois  Industrial  Board,  in  the  case  of  the 
death  of  a  special  policeman,  due  to  the  accidental  discharge  of 
a  revolver,  because  he  was  not  engaged  in  an  extra-hazardous 
employment  and  while  the  court  did  not  decide  the  question  it 
did  say  that  the  deceased  was  an  employee  and  not  an  officer.43 
The  Illinois  Act  excludes  officials  of  the  state  and  its  subdivi- 
sions, and  in  a  late  Illinois  case  it  has  been  held  that  policemen 
are  officials  and  therefore  excluded.44 

Police  Officers  are  not  employees  under  the  Montana  Act,45 
nor  under  the  Kansas  Act,  as  amended.46  Under  the  Virginia 
Act  policemen  are  employees  but  are  not  entitled  to  compensa- 
tion because  they  are  public  officers.47  It  has  been  held  in  Cali- 
fornia that  a  speed  officer  injured  by  a  fall  from  a  motor  cycle 
while  pursuing  a  speeding  automobile  was  entitled  to  compensa- 
tion from  the  county  by  which  he  was  employed.48  Originally 

42.  Ex  parte  Preston,  72  Tex.  Cr.  R.  77,  161  S.  W.  115.     See  also  Mc- 
Quillin  on  Municipal  Corporations,  II,  940,  and  V.  5049;  28  Cyc.  497;  Wood- 
hull  v.  Mayor  of  N.  Y.,  150  N.  Y.  450,  44  N.  B.  1038;    Kimball  v.  Boston,  1 
Allen  417;  Buttrick  v.  Lowell,  1  Allen  172;  79  Am.  Dec.  721;   Norristown 
v.  Fitzpatrick,  94  Pa.  St.  121;  Everill  v.  Swan,  17  Utah  514,  55  Pac.  68; 
Brown  v.  Russel,  166  Mass.  14,  32  L.  R.  A.  253,  55  Am.  St.  Rep.  357N; 
Dempsey  v.  New  York  Central  &  H.  River  Co.,  146  N.  Y.,  290;  McKain  v. 
Baltimore  &  O.  R.  Co.,  65  W,  Va.  233,  23  L.  R.  A.   (N.  S.)  289;  Scherl  v. 
Flam,  136  App.  Div.  (N.  Y.)  753,  121  N.  Y.  S.  522;  Lizano  v.  City  of  Pass 
Christian,  96  Miss.  640,  50  So.  951;  Ryan  v.  City  of  New  York,  126  N.  E. 
350,  5  W.  C.  L.  J.  718.    But  see  Mangam  v.  Brooklyn  98  N.  Y.  585,  50  Am. 
Rep.  705;     Devney  v.  Boston,  223  Mass.  270,  111   N.  E.   788;   Rooney    v. 
City  of  Omaha,  —  Neb.  — ,  181  N.  W.  143.    Modifying  former  opinion  in 
177  N.  W.  166. 

43.  Marshall  v.  City  of  Pekin,  114  N.  E.  497,  276  111.,  187;  City  of  Jack- 
sonville v.  Allen,  25  111.  App.  54,  58. 

44.  City  of  Chicago  v.  Ind.  Com.,  291  111.  23,  125  N.  E.  705,  5  W.  C.  L. 
J.  501.     Contra  Wyoming  Act,  Am.  1921,  §  4318. 

45.  Report  (1915)  Mont.  Ind.  Ace.  Bd.  214. 

46.  Griswold  v.  Wichita,  99  Kan.  502,  162  Pac.  276,  Ann.  Gas.  1917D, 
31.     See  Udey  v.  Winifield,  97  Kan.  279,  155,  Pac.  43,  14  N.  C.  C.  A.  943. 

47.  Mann  v.  City  of  Lynchburg— Va.— (1921),  106  S.  E.  371. 

48.  Donahue  v.   County   of   Marin,   2   Cal.   Ind.   Ace.,   137.     A  deputy 
Sheriff  appointed  for  his  own  convenience  in  a  special  case  is  not  an 
employee.    Yancey  v.  County  of  Los  Angeles,  2  Cal.  I.  A.  C.  Dec.  601. 

152 


WHO  COMES  UNDER  THE  ACT.  §   35 

the  provision,  of  the  California  Act,  defining  employee  was  not 
clear  as  to  whether  officials  were  included.  Since  the  Commission's 
aforementioned  ruling  as  to  the  speed  officer  the  Act  has 
been  amended  to  include  "all  elected  and  appointed  paid  public 
officers." 

It  has  been  held  in  California40  and  Connecticut50  that  a  sheriff 
is  not  an  employee  of  the  county,  also  that  the  relationship  of 
employer  and  employee  does  not  exist  between  a  city  and  an 
election  officer,  so  as  to  entitle  him  to  compensation  when  injured 
while  carrying  returns  from  his  district  to  the  proper  officer.51 
And  a  member  of  the  national  guard  who  was  injured  in  a  com- 
petitive shooting  match  was  held  to  be  in  the  service  of  the  state, 
and  his  injury  arose  out  of  the  employment.52 

The  Minnesota  Act  excludes  any  official  who  shall  have  been 
elected  or  appointed  for  a  regular  term  of  office.  Under  this 
phraseology,  it  was  held  that  since  policeman  were  not  appointed 
for  a  regular  term,  they  were  employees  within  the  meaning  of 
the  act.63  For  the  same  reason  firemen  were  also  held  to  be  within 
the  Minnesota  Act.04  The  Ohio,55  Pennsylvania,50  and  Wisconsin 
A«-ts57  include  policemen  and  the  British  Act  expressly  excludes 
them." 

Officials  who  have  been  "elected  or  appointed  for  a  regular 
term  of  office,"  within  the  language  of  the  Nebraska  Act,  means 
comformable  law.59 

49.  Cordelia  Hay  Dolan   v.  Mono  County,  175  Cal.  752,  167  Pac.  377 
A  1  W.  C.  L.  J.  150;    City  Marshal  Renaldi  v.  The  Town  of  Rocklin,  1 
Cal.  Ind.  Ace.  Com.  (Part  II)   206. 

50.  Sibley  v.  State,  89  Conn.  682,  93  Atl.  161,  Am.  1921,  §  5388. 

51.  Los  Angeles  v.  State  Ind.  Ace.  Com.,  35  Cal.  App.  31,  169  Pac.  260, 
1  W.  C.  L.  J.  298. 

52.  Wallace  v.  National  Guard  of  Cal.,  3  Cal.  I.  A.  C.  94. 

53.  State  ex  rel.  City  of  Duluth  v.  Dist.  Court  of  St.  Louis,  Co..  et  al., 
158  N.  W.  791;  Segale  v.  St.  Paul  City  Ry.  Co.,  —  Minn.  — ,  (1921).  180 
N.  W.  777.. 

54.  Id.    791. 

55.  In  re  Frances  E.  Lyman,  Vol.  1,  No.  7,  Bui.  Ohio,  In.  Coin.  p.  182. 

56.  McCarl  v.  Borough  of  Houston,  263  Pa.  1,  106  Atl.  104,  3  W.  C.  L.  J. 
788. 

57.  Village  of  Kiel  v.  Ind.  Com.  of  Wis.  158  N.  W.  68;    Acts  of  1913,  §§ 
2394,  2397. 

58.  Section  13,  Acts  of  1906. 

59.  Rooney  v.  City  of  Omaha—  Neb.— ,  177  N.  W.  166,  6  W.  C.  L.  J.  69. 

153 


§  36  WORKMEN'S  COMPENSATION  LAWS. 

§  36.  Employees  of  the  State  and  its  Political  Subdivisions. — 
A  number  of  the  acts  make  it  compulsory  for  the  State,  its  politi- 
cal subdivisions,  commissions,  boards,  etc.,  to  pay  compensation 
as  provided  under  the  Act,  unless  the  employee  has  rejected  the 
Act,  where  that  is  permitted.60 

While  the  state  is  a  sovereign  and  is  not  liable  for  torts  of 
its  officers  and  agents,  it  may  consent  to  such  and  similar  liability 
by  legislative  enactment.61  So  too,  such  liability  may  be  expressly 
or  impliedly  imposed  by  statutes  upon  a  county,62  township  or 
municipality.63  The  validity  of  such  statutes  in  the  form  of  com- 
pensation acts  has  been  upheld  or  gone  unquestioned  in  many 
cases  in  which  the  states  and  their  various  political  subdivisions 
have  been  held  liable  to  pay  compensation.  Though  it  has  been 
held  in  some  jurisdictions  that  the  state  is  not  covered  by  the  act 
in  carrying  on  work  incidental  to  its  governmental  functions  and 
not  for  pecuniary  gain.64  Where  a  state  engages  in  business  like 
an  individual  it  throws  off,  for  the  purpose,  its  sovereignty  and 
becomes  subject  to  the  rules  governing  private  individuals.65 

It  was  held  that  a  carpenter  employed  by  the  department  of 
Public  Works  of  the  State  of  New  York,  who  was  using  a  sledge 
when  a  splinter  from  a  hammer  struck  him  in 'the  eye,  causing  the 
loss  of  the  eye,  was  entitled  to  compensation  under  the  New  York 
Act,  as  an  employee  of  the  State,66  and  that  a  teacher  in  a  state 
imbecile  school  is  an  employee  of  the  state  of  Connecticut  and  en- 
titled to  compensation  when  injured;07  but  Massachusetts  holds 

60.  Calif.,  Conn.,  111.,  la.,  Mass.,  Mich.,  Minn.,  Neb.,  N.  J.,  N.  Y.,  Ohio, 
Wis.,  Ky.,  applies  to  municipal  corporations,  but  not  to  the  State,  Oregon 
excludes  municipal  corporations.     Hornig  v.  Town  of  Canby,  —  Ore.  — , 
(1920),  188  Pac.  700,  5  W.  C.  L.  J.  887. 

61.  36  Cyc.  881  and  911  and  cases  cited. 

62.  11  Cyc.  497  and  cases  cited. 

63.  28  Cyc.  1257  and  cases  cited;  McLaughlin  v.  Industrial  Board,  281 
111.  100,  117  N.  E.  819,  1  W.  C.  L.  J.  504. 

64.  Allen  v.  State,  160  N.  Y.   S.  85,  173  App.  Div.  455;     Redfern  v. 
Eby,  —  Kan.  — ,  170  Pac.  800,  1  W.  C.  L.  J.  768;    Miller  v.  Pillsbury  — 
Cal.  — ,  128  Pac.  327. 

65.  State  Bank  v.  Dibrell,  —  Tenn.  — ,  3  Sneed  379. 

66.  Jennings  v.  Department  of  Pubic  Works,  5  N.  Y.  £t.  Dep.  416. 

67.  Skinner  v.  Connecticut  School  for  Imbeciles,  1  Conn.  Comp.  Dec. 
106;  Spillane  v.  State  of  Conn.  1  Conn.  Comp.  Dec.  505. 

154 


WHO  COMES  UNDER  THE  ACT.  §   36 

to  the  contrary;88  that  a  county  was  liable  for  injury  to  an  em- 
employee  working  in  a  gravel  pit;6"  that  a  park  caretaker  was  an 
employee  of  the  city  and  entitled  to  compensation  as  such;70  that 
a  street  sweeper  who  was  run  down  and  injured  by  a  vehicle  on 
the  public  streets  was  allowed  to  recover  from  the  city;71  that  the 
dependents  of  a  citizen  killed  while  complying  with  a  request 
by  a  village  marshal  to  assist  in  the  arrest  of  an  offender  was 
entitled  to  compensation;72  that  a  high  school  boy  working  in  a 
manual  training  department  of  a  school  for  pay  at  the  direction 
of  the  principal,  with  the  acquiescence  of  the  school  board,  was 
an  employee  of  the  city;73  that  the  members  of  a  crew,  selected 
by  an  agent  of  a  town  to  build  a  bridge,  were  employees  of  .the 
town;74  that  a  city,  constructing  a  sewer,  not  being  engaged  in 
a  gainful  enterprise,  is  not  within  the  Kansas  Act.75  The  New 
York  Act  contained  a  similar  provision,  prior  to  the  amendment 
of  1916.76  Under  the  Illinois  Act  municipal  corporations  have 
the  same  right  of  election  as  other  employers,77  and  it  has  been 
held  in  a  recent  Illinois  case  that  a  street  sweeper  was  engaged 
in  the  business  of  maintaining  a  structure  for  the  city  and  entitled 

68.  Lesner  v.  City  of  Lowell,  —  Mass.  — ,  116  N.  E.  483,  A  1  W.  C.  J,. 
J.  863. 

69.  Popke   v.    Waupaca   County,   Wis.   Ind.   Com.    Bui.    (1912)    98,   8 
N.  C.  C.  A.  (note)  960. 

70.  City  of  Superior  v.  Industrial  Commission  et  al.,  160  Wis.  641,  8 
N.  C.  C.  A.  960,   152  N.  W.  151. 

71.  Purdy  v.  Sault  Ste.  Marie  Mich.  Ind.  Ace.  Bd.,  5  N.  C.  C.  A.  905; 
Lowney  v.  City  of  New  Bedford,  2  Mass.  Ind.  Ace.  Bd.  724;    City  of  Rock 
Island  v.  Ind.  Comm.,  286  111.  76,  122  N.  E.  82,  3  W.  C.  L.  J.  592. 

72.  Village  of  West  Salem  v.  Ind.  Com.,  162  Wis.  57,  155  N.  W.  929. 

73.  Schmitz  v.  City  of  Appleton,  Wis.  Ind.  Com.  Bui.  (1913)  31,  8  N.  C. 
C.  A.  96;    White  v.  Boston,  226  Mass.  517,  116  N.  E.  481. 

74.  Peabody  v.  Town  of  Superior,  Wis.  Ind.  Com.  Bui.,   (1912)   99,  8 
N.  C.  C.  A.  961;  Lanagan  v.  Town  of  Saugerties,  167  N.  Y.  S.  654.  1  W. 
C.  L.  J.  675. 

75.  Roberts  v.  Ottawa,  101  Kan.  228,  165  Pac.  869;     Redfern  v.  Eby 
(Kan.),  170  Pac.  800,  1  W.  C.  L.  J.  768;  Gray  v.  Board,  101  Kan.  195,  165 
Pac.  867;  Oriswold  v.  City  of  Wichita.  —  Kan.  — ,  162  Pac.  276,  A.  1  W. 
C.  L.  J.  621. 

76.  Section  3  Subd.  3,  Allen  v.  State,  173  App.  Div.  455,  160  N.  Y.  S.  85. 

77.  Marshal  v.  Pekin,  276  111.  187,  114  N.  E.  497;  111.  Act.  §  3,  Am.  1921. 

156 


§  36  WORKMEN'S  COMPENSATION  LAWS. 

to  compensation;78  while  under  the  Montana  Act,  cities  have  no 
right  of  election.79 

It  has  been  held  that  a  county  could  not  defeat  the  claim  of  an 
injured  workman  on  the  theory  that  there  is  no  money  in  the 
county  treasury  available,  especially  when  that  fact  was  not 
pleaded  ;80  that  the  Texas  Act  applying  to  all  corporations  having 
more  than  five  employees  applies  to  a  City;81  that  under  the  Cali- 
fornia Act,  a  municipal  corporation  is  liable  for  compensation  to 
the  employees  of  a  municipal  contractor;82  that  a  street  inspector, 
who  inspects  the  work  of  a  street  paving  contractor,  is  an  employee 
of  the  muncipality  ;83  that  employees  of  a  city  engaged  in  the 
maintenance  of  its  water  mains  were  under  the  Illinois  Act;84  that 
the  Sanitary  District  of  Chicago,  which  is  a  quasi-public  munici- 
pality, comes  within  the  act;85  that  municipalities  and  their  em- 
ployees come  under  the  compensation  acts  of  Maryland,86  New 
Jersey,87  Ohio88  and  Washington;89  that  a  reclamation  district, 
being  a  mere  governmental  agent  with  limited  powers,  is  not  an 
employer  within  the  definition  contained  in  the  California  Act.90 

A  laborer  appointed  under  Section  188  of  the  Military  Law  of 

78.  City  of  Rock  Island  v.  Indus.  Comm.  287  111.  76. 

79.  Butte  v.  Ind.  Ace.  Bd.,  52  Mont.  75,  156  Pac.  130. 

80.  Nevada  Ind.  Com.  v.  Washoe  Co.,   41  Nev.  437,   171,  Pac.   511,   1 
W.  C.  L.  J.  1088.     See  also  McLaughlin  v.  Industrial  Board,  281  111.  100. 
117  N.  E.  819,  1  W.  C.  L.  J.  504.    Townships  as  employers. 

81.  Dunaway  v.  Austin  St.  R.  Co.,    (Civ.  App.),  195  S.  W.  1157. 

82.  Mihaica  v.  Mlagenevich  &  Gillespie  and  the  City  of  Los  Angeles,  1 
Cal.  Ind.  Ace.  Com.  (Part  II)   174. 

83.  Berren  v.  City  of  Venice,  2  Cal.   Ind.   Ace.  Com.,  31;     Spears  v. 
City  of  Santa  Monica,  2  Cal.  Ind.  Ace.  Com.  941. 

84.  Brown  v.  City  of  Decatur,  188  111.  App.  147. 

85.  Radigen  v.  The  Sanitary  Dist.  of  Chicago,  1  Bull.  111.  Ind.  Bd.  138; 
Canadian  Northern  R.  Co.  v.  Green,    (Sask.)   30  D.  L.  R.  546.     Holding 
Municipal  Steel  railway  is  liable  for  compensation. 

86.  Claim  No.  407,  Myer  v.  Mayor  and  City  Council  of  Baltimore,  First 
Ann.  Rep.  St.  Ind.  Com.  of  Md.   (1914  &  15)   20. 

87.  Luckey  v.  City  of  Newark,  37  N.  J.  L.  J.  117. 

88.  In  re  Lyman,  1  Bull.  Ohio,  Ind.  Com.  182. 

89.  State  ex  rel.  Pratt  v.  City  of  Seattle,  73  Wash.  396,  132  Pac.  45. 

90.  Bettencourt  v.  Indus.  Ace.  Comm.,  175  Cal.  559,  166  Pac.  323. 

156 


WHO  COMES  UNDER  THE  ACT.  §   36 

New  York  was  not  an  employee  of  the  City  of  New  York,  though 
his  wages  were  paid  by  the  city.91 

Sections  2394-3  of  the  Wisconsin  Act  provides  that  an  em- 
ployer subject  to  the  Compensation  Act  shall  be  liable  for  com- 
pensation to  the  employees  of  contractors  under  him  where  sucli 
contractors  are  not  subject  to  the  act.  And  it  has  been  held  that 
where  the  immediate  employer  of  a  garbage  collector  was  not 
subject  to  the  act,  the  City  of  Milwaukee  was  liable  to  an  em- 
ployee of  such  contractor  when  he  was  injured  in  the  course  of 
his  employment.02 

The  fact  that  a  deputy  sheriff  is  expressly  excluded  from  the 
California  Act,  did  not  affect  his  right  to  compensation  from  his 
employer — a  mining  company.  The  deputy  sheriff  receiving  no 
remuneration  from  the  county:93 

"Employees  of  a  state  and  its  governmental  agencies,"  when 
not  engaged  in  an  enterprise  carried  on  for  pecuniary  gain  or 
profit  are  not  within  the  operation  of  the  Nebraska  Workmen's 
Compensation  Act ;  therefore  a  janitor  oi'  a  school  district  does 
not  come  within  the  act.94 

A  fireman  regularly  appointed  under  the  provisions  of  the 
charter  of  the  city  of  New  Haven  is  not  an  employee  where  the 
act  defines  an  employee  as  any  person  who  has  entered  into  or 
works  under  any  contract  of  service  or  apprenticeship  with  an 
employer.95 

The  court  in  holding  that  the  chief  of  firemen  of  the  city  of 
Chicago  was  not  an  employee,  because  he  came  within  a  class 
exempted  under  the  act,  as  subject  to  receiving  a  pension  from 

91.  Muller  v.  City  of  New  York,  178  N.  Y.  S.  416,  189  App.  Div.  363,  5 
W.  C.  L.  J.  105. 

92.  City  of  Milwaukee  v.  Fera  et.  al.,  170  Wis.  348,  174  N.  W.  926,  5 
W.  C.  L.  J.  336. 

93.  Engels  Copper  Mining  Co.  v.  Ind.  Ace.  Comm.,  —  Cal.  — ,  185  fac. 
182.  5  W.  C.  L.  J.  134. 

94.  Ray  v.  School  Dist.  of  Lincoln,  —  Neb.  — ,  1920,  181  N.  W.  140.  Nor 
a  policeman.    Rooney  v.  City  of  Omaha,  —  Neb.  — ,  (1920),  181  N.  W.  143. 
Modifying  former  opinion  177  N.  W.  166. 

95.  McDonald  v.  City  of  New  Haven  —  Conn.  — ,  (1920),  109  All.  176, 
5  W.  C.  L.  J.  779. 

157 


§  37  WORKMEN'S  COMPENSATION  LAWS. 

a  fund  to  which  the  city  or  state  contributed,  said:  "The  de- 
ceased would  not  have  been,  during  his  lifetime,  entitled  to  re- 
ceive compensation.  Up  until  the  very  time  of  his  death  he  was 
excepted  from  the  provisions  of  the  Compensation  Act  because 
by  the  provisions  of  sections  5  and  7  of  the  Pension  Act  he  was 
entitled  to  compensation,  and  by  the  provisions  of  section  6  of 
the  Pension  Act  his  widow  or  minor  children  were  entitled  to 
compensation.  Until  his  death  it  was  not  possible  to  determine 
that  he  would  not  be  survived  by  a  widow  or  minor  children,  and 
so  it  was  not  possible  to  determine  until  after  his  death  that  he> 
would  not  leave  surviving  him  "beneficiaries  or  heirs"  to  whom 
a  pension  would  be  payable  from  a  fund  to  which  the  city  had 
contributed.  "Whether  or  not  a  person  is  an  employee  within  the 
meaning  of  the  Workmen's  Compensation  Act  must  be  determined 
from  the  situation  existing  during  his  lifetime.  If  during  his 
lifetime  deceased  was  not  an  employee  of  the  city  of  Chicago 
within  the  meaning  of  the  Workmen's  Compensation  Act,  and  not 
entitled  to  receive  compensation  under  its  terms,  he  cannot  become 
an  employee  after  his  death.  The  fact  that  deceased  died  leaving 
no  one  surviving  entitled  to  receive  a  pension  under  the  Firemen's 
Pension  Fund  Act,  could  not,  ipso  facto,  after  his  death  bring  the 
deceased  within  the  provisions  of  the  act  from  which  he  was  ex- 
eluded  during  his  lifetime."  96 

Where  a  city  employee  was  injured  he  must  show  in  his  dec- 
laration that  the  defendant  was  operating  under  the  Illinois 
Act,  and  that  he  was  engaged  in  a  class  of  work  which  was  haz- 
ardous, for  there  is  no  presumption  that  he  comes  under  the 
act.97 

§  37.  Independent  Contractors. — Whether  one  is  an  em- 
ployee or  an  independent  contractor  is  often  a  close  question  and 
one  of  importance,  because  independent  contractors  are  not  en- 

96.  City  of  Chicago  v.  Indus.  Comm.,  —  111.  — ,  (1920),  127  N.  E.  351,  6 
W.  C.  L.  J.  142;    State  ex  rel.  Fletcher  v.  Carroll,  162  Pac.  593,  —  Wash. 
— ,  B  1  W.  C.  L.  J.  1611. 

97.  Obrien  v.  Chicago  City  Ry.  Co.,  —  111.  — ,   (1920),  127  N.  E.  389,  6 
W.  C.  L.  J.  144.     See  §  3,  111.  Act.  Am.  1921. 

158 


WHO  COMES  UNDER  THE  ACT.  §   37 

titled  to  compensation  benefits  from  their  principals,  as  they  are 
not  generally  covered  by  the  compensation  acts,98  except,  if  at 
all,  in  the  capacity  of  employers. 

The  common  law  decisions  on  this  question  are  of  as  much 
weight  and  authority  as  the  decisions  of  courts  and  commissions 
in  cases  where  the  question  arises  out  of  claims  for  compensation. 
It  was  expressly  held  in  an  Ohio  decision  that  the  law  of  inde- 
pendent contractors  was  in  no  wise  changed  by  the  enactment 
of  the  Compensation  Act,"  which  may  be  generally  considered  to 
be  true.  The  questions  to  be  determined,  in  deciding  whether 
one  is  an  independent  contractor  or  an  employee,  are:  "Who 
lias  the  general  control  of  the  work?  Who  has  the  right  to  di- 
rect what  shall  be  done?  Who  shall  do  it  and  how  it  shall  be 
done?  If  the  answer  to  these  queries  shows  that  this  right  re- 
mains in  the  employer,  the  relation  of  the  independent  contractor 
does  not  exist  between  the  contractor  and  the  employer.  On  the 
other  hand,  if  the  employer  has  not  this  privilege  it  does  exist."1 

It  has  also  been  said  that,  "the  test  of  an  independent  con- 
tractor is  that  he  render  service  in  the  course  of  independent 
occupation,  following  the  employer's  desire  in  results2  but  not 
in  means;  but  the  employer's  authoritative  control  is  to  be  dis- 
tinguished from  mere  suggestions  as  to  detail,  or  necessary  co- 
operation where  the  work  is  part  of  a  larger  undertaking."3 

98.  State  ex  rel.  Virginia  &  Rainy  Lake  Co.  v.  Dist.  Court  of  St.  Louis, 
128  Minn.  43,  150  N.  W.  211,  L.  R.  A.  1916a,  n.  247,    7  N.  C.  C.  A.  1076, 
970;   Columbia  School  Supply  Co.  v.  Lewis,  63  Ind.  App.  386,  115  N.  B. 
103;  Cinofsky  v.  Indus.  Comm.,  290  111.  521;  Tsangournas  v.  Smith,  171  N. 
Y.  8.  25€,  17  N.  C.  C.  A.  698. 

99.  Buddinfcer  v.  Champion  Iron  Co.,  Vol.  1  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  70:  Norton  v.  Day  Coal  Co.,  —  Iowa  — ,  (1920),  180  N.  W.  905;  Kelley's 
Dependents  v.  Hoosac  Lbr.  Co.,  —  Vt.  — ,  1921,  113  Atl.  818. 

1.  Mason  &  Hodge  Co.  v.  Highland,  (Ky.)  116  S.  W.  320;  Tuttle  v.  Em- 
bury-Martin Lumber  Co.,  192  Mich.  385,  158  N.  W.  875;  26  Cyc.  970,  15  N. 
C.  C.  A.  496;    Strieker  v.  Indus.  Comm.,  —  Utah  — ,  (1920),  188  Pac.  849, 
5  W.  C.  L.  J.  920. 

2.  Kelley  v.  Delaware.  L.  &  Western  R.  Co.,  —  Pa.  — ,  113  Atl.  419. 

3.  Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328,  15  N.  C.  C.  A.  487; 
Western  Indemnity  Co.  v.  Pillsbury,  172  Cal.,  807,  159  Pac.,  721;  Pace  v. 
Appanoose  Co.,  184  la.  498.  168.  N.  W.  916,  2  W.  C.  L.  J.  884;    Franklin 
Coal  A  Coke  Co.  v.  Indus.  Comm.,  —  111.  — ,  (1921).  129- N.  E.  811. 

159 


§  37  WORKMEN'S  COMPENSATION  LAWS. 

Each  case  must  be  determined  on  its  own  facts  and  ordinarily  no 
one  feature  of  the  relation  is  determinative,  but  all  must  be  con- 
sidered together.4 

It  would,  however,  appear  safe  to  say  that  one  indispensable 
element  to  his  character  as  an  independent  contractor  is  that  he 
must  have  contracted  to  do  a  specific  work  and  have  the  right 
to  control  the  mode  and  manner  of  doing  it.5  Other  cases  hold 
that  the  vital  factor  to  establish  the  status  of  employer  and  em- 
ployee as  distinguished  from  principal  and  independent  contractor 
is  that  of  direction  and  control,0  another  case,  that  one  who  con- 
tracts to  do  or  get  done  certain  work  at  a  fixed  price  is  not  a  work- 
man within  the  meaning  of  the  Compensation  Act.7 

Courts  will  sometimes  disregard  the  contract  and  depend  en- 
tirely upon  the  conduct  of  the  parties  in  order  to  determine  their 
relation,8  especially  is  this  true  if  the  contract  appears  to  be  only 
a  colorable  arrangement  to  enable  the  master  to  evade  liability  to 
a  servant  for  failure  to  perform  a  duty  imposed  by  law,9  however. 

4.  McCoy  v.  Kirpatrick,  1  Gal.,  I.  A.  C.  Dec.  599;  Wewinski  v.  Vite,  1 
Conn.  Comp.,  Dec.  629. 

5.  Powley  v.  Vivian  &  Co.,  169  N.  Y.  App.  170,  154  Supp.  426,  10  N. 
C.  C.  A.  835.    Citing  Alexander  v.  R.  A.  Sherman  Sons  Co.,  86  Conn.  292,  85 
Atl.  514;    Hexamer  v.  Webb,  101  N.  Y.  377,  4  N.  E.  755;  Cunningham  v. 
International  Ry.  Co.,  51  Texas  503;  Andrews  v.  Boedecker,  17  111.,  App. 
213;    Indiana  Iron  Co.  v.  Gray,  19  Ind.  App.  585,  48  N.  E.  803;    Parrott  v. 
Chicago  Great  Western  Ry.  Co.,  127  Iowa  419;  103  N.  E.  352;  Williams  v. 
National  Register  Co.,  157  Ky.  836;  164  S.  W.  112;   Smith  v.  State  Work- 
men's Ins.  Fund,  262   Penn.  286,   105  Atl.  90,  3  W.   C.  L.   J.  374;   Kelly's 
Dependents  v.  Hoosac  Lbr.  Co.,  —  Vt.  — ,  (1921),  113  Atl.  818. 

6.  Hart  v.  Mammoth  Copper  Mining  Co.,  1  Cal.  Ind.  Ace.  Com.   (Part 
I),  77;    State  ex  rel.  Va.  &  Rainy  Lake  Co.  v.  District  Court  of  St.  Louis 
Co.,  128  Minn,  43,  150  N.  W.  211,  7  N.  C.  C.  A.  1076;    Kasovitch  v.  Wattis 
Co.,  2   Cal.   lud.  Comm.    357;     Pottcrrf  v.  Fidelity  Coal  Mining    Co.,  122 
Pac.  120,  86  Kan.  774;    Chicago  R.  I.  &  P.  Ry.  Co.  v.  Bennett,  128  Pac. 
705,  36  Okla.  358;    Johnson  v.  Carolina  C.  &  O.  R.  Co.,  72  S.  E.  1057,  157 
N.   C.  382;    Robideaux  v.   Herbert,  118  La.  1089,  43  So.    887;   Linton  v. 
Smith,  8  Gray  (Mass.)  147;  Richmond  v.  Sitterding,  43  S.  E.  562,  101  Va. 
354,  99  Am.  St.  Rep.  879,  65  L.  R.  A.  445;    Meredosia  Levee  &  Drainage 
Dist.  v.  Ind.  Comm.,  285  111.  68,  120  N.  E.  516,   17  N.  C.   C.  A.  683. 

7.  Simmons  v.  Faulds,  3  W.  C.  C.  169. 

8.  Anderson  v.  Foley  Bros.,  124  N.  W.  987,  110  Minn.  151. 

9.  Nelson  v.  American  Cement  Plaster  Co.,  115  Pac.  578,  84  Kan,  797. 

160 


WHO  COMES  UNDER  THE  ACT.  §   37 

all  the  circumstances  should  be  considered.10  So,  too,  it  has  been 
held  that  where  one  company  is  merely  an  instrument  in  the  hands 
of  another  to  evade  liability  both  having  the  same  officers  and 
offices,  a  workman  in  the  employ  of  one  will  be  considered  in  the 
employ  of  both;11  that  the  employees  of  a  contractor  did  not  be- 
come the  employees  of  the  company  whose  president  directed 
them  to  proceed  with  work  on  a  wall,  assuring  them  that  it  was 
safe;12  that  one  who  is  merely  employed  by  the  owner  to  superin- 
tend the  work  and  hire  employees  is  not  liable  for  compensation 
to  the  employees;18  that  an  independent  contractor  may  at  the 
same  time  be  an  agent  of  the  principal  for  whom  he  is  doing  the 
work  so  that  the  principal  is  liable  for  the  contractor's  negligence 
under  the  doctrine  of  respondent  superior;14  that  the  rights  of 
the  employee  under  the  Workmen's  Compensation  Law  are  not 
affected  by  the  invalidity  of  his  employer's  subcontract.18 

An  employee  in  a  junk  yard  was  paid  by  the  day  after  cars 
reached  the  yard,  and  were  spotted,  but  until  then  he  was  to 
strip  engines  at  $4.00  per  engine,  using  the  tools  of  his  employer. 
The  court  held  that  while  the  employee  was  stripping  the  engines 
he  was  not  an  independent  contractor  and  injuries  arising  out  of 
the  employment  of  stripping  the  engines  came  within  the  protec- 
tion of  the  compensation  act.16 

In  another  case  the  deceased  worked  for  the  defendant  part  of 
the  time  carting  coal.  He  also  obtained  coal  from  the  defendant 
at  the  "mine  price"  and  delivered  it  to  customers,  receiving  as 
compensation  for  his  efforts  the  difference  between  the  mine  price 
and  his  selling  price.  On  the  day  of  the  accident  he  came  to  the 
mine  to  procure  coal  for  one  of  his  customers  and  the  defendant 

10.  Travis  v.   Hobbs  Wall  &  Co.,  165  111.   App.  481. 

11.  Asplund   v.  Conklin  Construction  Co.,  165  111.  App.   44. 

12.  Kaplan  v.  Friedman  Construction  Co.,  148  App.  Div.  14,  132  Supp. 
233. 

13.  Batchelder  v.  Charles  W.  Kreis  and  Mary  E.  Powers.  1  Cal.  In.  Ace. 
Com.   (Part  II)   63. 

14.  Norweigan  Danish  Methodist  Epis.  Church  v.  Home  Tel.  Co.,  119 
Pac.  834,  66  Wash.  511. 

15.  Wausau  Lumber  Co.  v.  Ind.  Comm.  166  Wis.  204,  164  N.  W.  836. 

16.  Cinofsky  v.  Indus.  Comm.   (1919).  —  111.  — .  125  N.  E.  286.  5  W. 
C.  L.  J.  185. 

161 
W.  C.— 11 


§  38  WORKMEN'S  COMPENSATION  LAWS. 

informed  him  that  he  had  a  delivery  for  him  to  make.  Finally 
it  was  decided  that  he  would  first  make  the  delivery  to  his  custom- 
er and  then  haul  the  load  for  the  defendant.  He  was  killed  soon 
after  leaving  the  mine.  The  court  in  reversing  an  award  said : 
"It  is  well  recognized,  in  all  cases  brought  under  the  act,  that  the 
burden  is  upon  claimant  to  furnish  the  evidence  from  which  the 
inference  can  reasonably  be  drawn  that  the  injuries  or  death  were 
caused  by  an  'accident  arising  out  of  and  in  the  course  of  his  em- 
ployment,' within  the  meaning  of  the  workmen's  compensation 
act."17 

Where  the  claimant  hauled  garbage  in  his  own  truck  furnishing 
the  gasoline  for  it,  the  cans  being  handled  by  others,  it  was  held 
that  he  was  an  independent  contractor  though  paid  $25.00  per 
day  for  himself  and  truck.18 

Where  there  is  a  written  contract  of  employment,  the  question 
whether  or  not  the  relation  is  one  of  employer  and  employee  or 
employer  and  independent  contractor,  is  to  be  determined  from 
the  contract.10 

§  38.  Workmen  Held  Independent  Contractors  not  Employees. 
—In  the  following  cases  the  workmen  were  held  to  be  independent 
contractors  and  not  employees.  One  who  agreed  with  the  re- 
spondent to  build  a  silo  for  $20.00,  respondent  to  furnish  the 
foundation,  the  materials,  and  a  helper  but  having  no  directive 
rights  over  the  work;20  one  who  undertook  to  do  a  job  of  slat<; 
roofing  for  a  fixed  sum  ;21  a  workman  who  agreed  to  cut  and  pile 
wood  on  the  defendant's  land  for  a  fixed  rate  per  cord,  cutting  as 
much  as  he  pleased  and  when  he  pleased  and  working  part  of  the 
time  for  other  people  ;22  a  teamster  who  did  general  hauling  and 

17.  Sugar  Valley  Coal  Co.  v.  Drake,  — Ind.  App.  — ,  117  N.  E.  937,  I'l 
N.  C.  C.  A.  254. 

18.  State  Indus.  Comm.  v.  Wiseman,  183  N.  Y  S  112,  6  W.  C.  L.  J. 
481. 

19.  LaMay  v.  Indus.  Comm.,  —  111.  — ,  (1920),  126  N.  B.  604,  5  W.  C. 
L.  J  797. 

20.  Boyington  v.  Stoddard,  1  Conn.   Comp.   Dec.  103. 

21.  Perham    v.  American    Roofing    Co.,      193  Mich.  221,     159    N.  W. 
140,  15  N.  C.  C.  A.  489;    Barnes  v.  Evans  &  Co.,  7  B.  W.  C.   C.  24. 

22.  Benoit  v.  Bushnell,  1  Conn.  Comp.  Dec.  172;     Snow  v.  Winkler,  1 
162 


WHO  COMES  UNDER  THE  ACT.  §    38 

was  hauling  bags  of  a  cement  company  at  25  cents  per  trip  ;-3  a 
whitewasher  who  entered  into  a  contract  to  do  a  job  of  white- 
washing for  a  certain  price  and  to  furnish  the  necessary  material 
and  labor;24  a  taxicab  driver  receiving  one-fourth  of  the  proceeds 
for  his  services  in  operating  the  company's  car;26  a  man  who 
agrees  to  paint  a  building  and  to  receive  a  certain  amount  while 
he  works  and  is  at  liberty  to  hire  an  assistant  for  whom  he  re- 
ceived the  same  amount,  but  on  whose  services  he  makes  a  profit, 
the  owner  of  the  building  furnishing  the  material;28  one  contract- 
ing to  erect  a  building  and  deliver  it  completed,  hiring  his  own 
assistants,  who  is  not,  as  to  details,  subject  to  the  direction  of 
ilu-  company  building  it;-7  a  carpenter  who  agreed  to  build  a  barn 
for  the  respondent,  being  paid  by  the  hour,  but  hiring  other  men, 
and  making  some  profit  on  their  wages  as  well  as  on  the  materials 
furnished  by  him,  and  doing  the  work  from  general  plans  without 
any  supervision  as  to  methods;28  a  decorator  who  agreed  to  paper 
a  house  being  erected,  the  decorator  to  have  complete  liberty  as 
to  the  hours  of  work;20  a  number  of  associated  workmen  working 
under  the  direction  and  control  of  one  of  their  number  as  their 
leader  and  business  manager,  who  are  treated  collectively  under 
a  common  firm  name  as  directed  by  the  leader;30  a  number  of 

Conn.  Comp.  Dec.  76;  Donlon  Bros.  v.  Industrial  Acci.  Comrn.,  173  Cal.  250, 
159  Pac.  715;  Fidelity  etc.,  Co.  v.  Brush,  176  Cal.  448,  168  Pac.  890.  1 
W.  C.  L.  J.  153. 

23.  In  re  Stull,  Ohio  Ind.  Comm.  No.  117139,  Oct.  4,  1915,  Flickenger 
v.  Indus.  Comm.,  —  Col.  — ,  (1919),  184  Pac.  851,  5  W.  C.  L.  J.  8;  In  re 
Win.   Musolf  3rd.  A.  R.  U.  S    C.  C.  152. 

24.  McDermott  v.  Gdndal    &    Sons.  111.    Ind.    Bd.,  Aug.  3,  1914;    Fin 
klestein   v.   Balkin,   103   Supp.  99;     Hungerford   v.  Bonn.    183  App  Div. 
818,  171  N.  Y.  S.  280,  2  W.  C.  L.  J.  682;     Kackel  v.  Serviss  180  App.  Div. 
54.  167  N.  Y.  S.  348,  1  W.  C.  L.  J.  235;     Holbrook  v.  Olympia  Hotel  Co., 
200  Mich  597,  166  N.  W.  876,  1  W.  C.  L.  J.  1076. 

25.  Smith  v.  General  Motor  Cab  Co.,  Ltd.,  80  L.  J.  K.  B.  839,   1  N. 
C.  C.  A.  576. 

26.  Wright  v.  Barnes,  and   Fidelity  &  Casualty  Co.,   1  Conn.  Comp. 
Dec.  260,  248. 

27.  Edmonson  v.  Coca-Cola  Co.,  — ,  Tex.  Civ.  App.  — ,  150  S.  W.  273. 

28.  Crittenden  v.  Robbins,  1  Conn.  Comp.  Dec.  523. 

29.  Lewis  v.    Stanbridge,  6  B.  W.  C.  C.  568. 

30.  Penas  v.  Utah  Construction  Co.,  2  Cal.  Ind.  Ace.  Com.  749;     Kas- 
cvitch  v.  L.  R.  Wattis  Co.,  2  Cal.  Ind.  Ace.  Com.  357. 

163 


§  38  WORKMEN'S  COMPENSATION  LAWS. 

men  engaged  under  the  claimant  to  chop  down  trees  for  a  lump 
sum  for  the  job,  which  was  to  be  distributed  among  the  gang  by 
arrangement  among  themselves:31  a  salesman  and  collector  on  a 
purely  commission  basis  who  employed  various  persons  to  help 
him,  furnished  his  own  conveyance  and  invested  some  of  his  own 
capital  in  the  business;32  two  men  who  were  owners  of  a  corn 
cutter  hired  out  the  machine  with  their  own  services,  to  various 
farmers  to  cut  corn  for  silos  at  the  rate  of  $2.00  an  hour,  while 
actually  engaged,  for  the  machine  and  their  services;33  a  teamster 
paid  per  load  for  one  definite  service,  producing  one  agreed  result, 
having  full  control  of  his  team,  his  time,  his  methods  of  work,  as 
to  whether  or  not  he  hired  help  and  of  all  details  except  as  toi 
what  is  to  be  hauled,  teaming  as  such  being  hiscegular  business;3" 
M.  Co.  who  agreed  to  furnish  night  watchmen  to  the  owners  of 
piers,  where  cargo  were  stored  and  the  M.  Co.  had  the  sole  right 
of  hiring  and  discharging  the  watchmen;35  a  plasterer  theretofore 
doing  journeyman  work,  who  makes  an  oral  contract  to  do  a 
plastering  job  for  a  lump  sum  and  is  given  free  hand  to  employ 
assistants,  and  takes  risks  of  profit  and  loss,  and  is  not  to  be 
controlled  or  supervised;36  the  owner  of  a  concrete  mixer  who 
agreed  to  build  culverts  for  a  town  at  the  rate  of  $15.00  per  day 
for  himself,  the  machinery  and  three  other  employees;37  one  who 
agreed  to  blast  and  break  up  stone  to  be  used  by  the  respondents 
for  building  purposes,  receiving  wages  per  day,  but  using  his 

31.  Curtis  v.  Plumtre,  6  B.  W.  C.  C.  87;    Gilmore  v.   Sexton,   1  Cal.  I. 
A.  C.  Dec.  257;     Rose  v.  Pickrell,  1  Cal.  I.  A.  C.  Dec.  85;     Soloski  v. 
Strickland,  1  Conn.  Comp.  Dec.  564;     Helton  v.  Tall  Timber  Lumber  Co. 
of  La.,— La.—  (1920),  86  So.  729,  7  W.  C.  L.  J.  299. 

32.  Fineblum  v.  Singer  Sewing  Machine  Co.,  1  Conn.  Comp.  Dec.  126. 
In  re  James  Reed,  3rd  A.  R.  U.  S.  C.  C.  152. 

33.  Busse  v.  Brugger,  Third  Annual  Report    (1914),  Wis.  Ind.  Com. 
78,  LaMay  v.  Indus.  Comm.,  —  111.  —  (1920),  126  N.  E.  604,  5   W.  C.  L. 
J.  797. 

34.  McCoy    v.    Kirkpatrick,      1    Cal.  I.  A.  C.    Dec.     599;     Ryland   v. 
Harve  M.  Wheeler  Lumber  Co.,  —  La.  — ,  (1920),  84  So.  55,  5  W.  C.  L.  J. 
850. 

35.  Oberg  v.  W.  J.  McRoberts  &  Co.,  6  N.  Y.  St.  Dep.  Rep.  386. 

36.  Baker  v.  Armstrong,  2   Cal.  I.  A.   C.  Dec.  1057;     In  re   Thomas 
Proud  Dinwiddie  Cons't  Co.,  2nd  A  R.  U.  S.  C.  C.  207. 

37.  Day  v.  Ellington,  Third  Annual  Report  (1914),  Wis.  Ind.  Com.  74. 
164 


WHO  COMES  UNDER  THE  ACT.  §    38 

own  tools  and  providing  the  dynamite  and  assistants  used,  and 
being  under  no  direction  or  duty  from  the  respondent;88  a  car- 
penter wprking  in  a  shop  on  materials  furnished  by  the  employer 
and  receiving  $1.00  an  hour  for  his  services,  while  thus  working 
using  the  tools  and  appliances  of  his  shop  ;89  a  man  working  under 
contract  to  cut  fire  wood  at  a  certain  price  per  cord,  he  agreeing 
to  furnish  his  own  tools  and  determining  his  own  hours  of  labor;40 
a  man  who  verbally  agreed  to  break  steel  and  clear  cinders  at 
so  much  per  ton,  and  who  employed  five  or  six  men  to  assist  him 
and  was  paid  weekly;41  a  workman  who  entered  into  a  written 
agreement  with  a  mining  company  to  carry  out  specific  blasting 
operations,  where  the  mining  company  had  exercised  no  control 
over  the  men  apart  from  the  agreement;42  a  mine  owner,  giving 
another  a  contract  to  mine,  reserved  no  rights  to  interfere  with 
details  of  the  work,  but  only  required  it  to  be  done  in  conformity 
with  the  contract  and  the  mining  rules  ;43  a  member  of  a  copart- 
nership working  under  a  subcontract  ;44  the  members  of  a  partner- 
ship which  entered  into  a  contract  with  a  contractor  to  install 
certain  machinery,  one  of  the  partners,  living  at  the  place  of 
business  being  injured  while  helping  to  unload  machinery  billed 
to  the  contractor;45  a  rabbit  trapper  who  was  paid  according  to 
the  number  of  animals  caught,  the  principal  furnishing  the  traps 
and  the  use  of  a  cottage  while  the  man  was  thus  engaged;46  one 
who  agreed  to  cut  mine  props  at  a  specified  sum  each,  he  employ- 
ing his  own  assistants  and  receiving  no  directions  as  to  how  to 

38.  Wowinski  v.  Vito,  1  Conn.  Comp.  Dec.  629. 

39.  Crittenden  v.  Dr.  B.  B.  Robbing  Bristol  Trucking  Co.,   1  Conn. 
Comp.  Dec.  523. 

40.  Donlon  Bros.  v.  Industrial  Ace.  Com.,  173  Cal.  250,  159  Pac.  715, 
15  N.  C.  C.  A.  492;     Parsons  v.  Industrial  Ace.  Com.  178  Cal.  394,  173 
Pac.  585,  2  W.  C.  L.  J.  619. 

41.  Vamplew  and  others  v.  Pargate  Iron  &  Steel  Co.,  88  L.  T.  756,  5 
W.  C.  C.  114.    C.  A. 

42.  Reid  v.  Leitch  Collieries,  7  B.  W.  C.  C.  1017. 

43.  Merri  weather  v.  Say  re  Mining  &  Mfg.  Co.,  49  So.  916,  161  Ala.  441. 

44.  Kasovitch  v.  L.  R.  Wattis  Co.,  2  Cal.  Ind.  Ace.  Com.  357. 

45.  Anderson  v.  Perew,  2  Cal.  Ind.  Ace.  Com.  727. 

46.  McConnell  v.  Galbraith,  7  B.  W.  C.  C.  968. 


165 


§  38  WORKMEN'S  COMPENSATION  LAWS. 

do  the  work;47  a  principal  voluntarily  assisting  a  contractor  who 
was  doing  work  for  him  ;48  a  stage  hand  who  carried  baggage  for 
different  theatre  troups  when  he  was  not  busy  doing. work  at 
the  theatre  of  his  employer;49  one  who  agreed  to  drag  some  logs 
with  his  horse,  being  paid  a  certain  sum  per  day,  and  was  not 
obliged  to  do  the  work  himself  but  might  have  sent  a  servant;50 
a  man  who  had  contracted  with  the  harbor  commissioners  to 
furnish  a  yawl  and  four  men  to  work  a  pilot  station  and  was 
drowned  while  taking  a  pilot  out  to  a  ship  in  the  harbor,  he  being 
under  no  obligation  to  do  the  work  personally;51  one  employed 
to  move  machinery  at  cost  plus  ten  per  cent  employing  and  di- 
recting his  assistants  and  being  paid  for  his  own  time  when  he 
worked;52  a  stone  contractor  employed  by  a  general  contractor 
to  do  the  stone  work  on  a  building  supplying  his  own  tools,  equip- 
ment and  laborers;53  one  contracting  to  furnish  an  engine,  men 
and  team  to  a  county  for  grading  work  at  a  fixed  daily  pay;54 
one  hired  to  move  some  building  material  in  his  own  way  through 
his  own  servant;55  the  mere  fact  that  a  workman  is  requested  to 
construct  a  building  in  a  certain  way  is  not  conclusive  that  he  i& 
not  an  independent  contractor;56  a  farmer  engaged  by  contractor 
to  do  hauling  for  a  price  per  team  ;57  a  woman  who  hauled  farmers ' 
milk  to  the  plant  of  a  manufacturer  of  milk  products,  controlling 

47.  Sickle  v.  Pierson,  37  N.  J.  Law  J.  15;     Clark  v.  Tall  Timber  Lbr. 
Co.,  140  La.  380,  73  So.  239. 

48.  Artenstein    v.    Employer's    Liability    Assur.    Corp.,    2    Mass.    Ind. 
Ace.  699. 

49.  Huscroft  v.  Bennett,  7  B.  W.  C.  C.  41. 

50.  Chisolm  v.  Walker  &  Co.,  2  B.  W.  C.  C.  261. 

51.  Walsh  v.  Waterford  Harbor  Commissioners,  7  B.  W.  C.  C.  960  C.  A. 

52.  Carleton  v.  Foundry  etc.  Products  Co.,     199  Mich.  148,  165  N.  W. 
816,  1  W.  C.  L.  J.  410,  15  N.  C.  C.  A.  492. 

53.  Mobley  v.   Rogers  Co.    (Ind.  App.),  119  N.  E.   477,  2  W.  C.  L.   J. 
47. 

54.  Pace  v.  Appanoose  County,  184  la.  498,  168  N.  W.  916,  2  W.  C.  L. 
J.   884. 

55.  In  re  Comerford,  224  Mass.  571,  113  N.  E.  460,  I.  W.  C.  L.  J.  793. 

56.  Connolly  v.  Industrial   Ace.  Com.  173    Cal.  405,  160    Pac.    239,  15 
N.  C.  C.  A.  490. 

57.  Zeitlow  v.   Smock,  64  Ind.  App.,   v.  117  N.  E.  665,  1    W.  C.  L.  J. 
174. 

166 


WHO  COMES  UNDER  THE   ACT.  §    38 

her  own  equipment  and  receiving  payment  from  the  farmers 
through  the  agency  of  the  manufacturer;58  an  owner  of  teams  and 
hcrses  who  let  them  with  drivers  to  a  company  at  a  rate  per  hour, 
paying  the  drivers,  and  driving  a  team  himself,  and  who  was  in- 
jured in  management  of  the  horses  of  his  team  ;59  one  who  w.as  en- 
gaged in  the  business  of  stable  keeping,  teaming  and  jobbing  and 
let  to  a  town  for  work  on  its  road  a  cart,  a  pair  or  horses,  and 
himself  for  an  undivided  price  of  $600  per  day;00  one  employer 
to  remove  trees  prepartory  to  grading  street,  to  be  paid  in  lump 
sum,  he  furnishing  his  own  tools,  controlling  his  own  time,  etc.;61 
one  employed  to  cut  with  his  own  tools,  such  timber  as  in  his  judg- 
ment was  best  suited  to  his  purpose  in  converting  it  into  units 
for  which  he  was  to  be  paid  and  over  which  his  employer  exercised 
no  control;62  a  contract  providing  for  digging  a  tunnel  for  an 
express  consideration,  but  contained  no  reservation  of  any  control 
of  the  work  more  than  was  necessary  to  insure  its  producing  the 
result  provided;63  where  a  drainage  district  supervised  a  ditch 
cleaning  operation  as  to  results  only,  while  the  person  injured 
operated  his  own  machine,  furnished  his  own  workmen,  and  direct- 
ed the  manner  of  work  for  a  per  diem  compensation,  the  latter  was 
an  independent  contractor;04  a  painter,  agreeing  to  paint  three 
smokestacks  for  a  corporation  where  has  absolute  control  of  himself 
and  his  helper  as  to  the  time  when  he  is  to  begin  work,  and  as 
to  where  he  shall  commence,  unhampered  by  directions  from  the 
corporation  and  not  subject  to  its  discharge;63  a  painter,  work- 
ing by  the  job  and  by  the  hour  on  the  residence  of  his  employer, 

68.     Sawtels  v.  Ekenberg  Co.,  206  Mich.  246,  172  N.  W.  681,  4  W.  C. 
L.  J.  252. 

59.  Centrello's  Case,  232  Mass.  456,  122  N.  E.  560,  3   W.  C.  L.  J.  740. 

60.  Winslow's  Case.  232  Mass.  458,  122   N.  E.  561,  3  W.  C.  L.  J.   741. 

61.  Stern  v.  Thompson,  (Iowa)  3  W.  C.  L.  J.  470;     Roach  v.  Hibbard 
&  Gifford,  184  N.  Y.  Supp.  418  (1920),  7  W.  C.  L.  J.  130. 

62.  Parsons  v.    Industrial    Ace.  Comm.   178    Cal.  394,    173    Pac.   585, 
2  W.  C.  L.  J.  619. 

63.  Industrial  Comm.  v.  Maryland  Casualty  Co.,  65  Colo.  279,  176  Pac. 
288,  3  W.   C.  L.  J.  95. 

64.  Meredosia  Levee   and  Drainage   Dist.  v.    Ind.  Comm.    of   Illinois, 
285  111.  6S,  120  N.  E.  516.  3  W.  C.  L.  J.  24. 

65.  Litta  v.  Rlley  Lumber  Company,  120  N.  E.  730,  224  N.  Y.  321. 

167 


§  38  WORKMEN'S  COMPENSATION  LAWS. 

and  who  hired  his  own  assistants;66  a  workman  who  transferred 
freight  from  one  railroad  to  another  at  a  specified  price  per  ton;67 
a  man  engaged  in  trucking  business,  owning  own  trucks,  who 
hauls  for  another  and  is  permitted  to  haul  as  he  pleases  without 
reporting  before  or  after  work.68 

"The  right  to  supervise,  control  and  direct  the  work  in  one  of 
the  tests  for  determining  whether  a  person  is  an  independent 
contractor  or  an  employee,  but  it  is  not  the  sole  and  only  test. 
One  who  takes  contracts  for  cleaning  and  painting  the  walls  of 
brick  buildings,  agreeing  to  furnish  his  own  tools,  scaffolding,  and 
materials,  to  employ  his  own  help,  keep  his  own  time,  to  furnish 
workmen's  compensation  insurance  for  the  workers  whom  he 
employs,  who  is  under  no  obligation  to  do  the  work  in  person, 
who  is  paid  on  weekly  estimate/*  50  per  cent  of  the  value  of  the 
work  done,  the  balance  being  reserved  until  the  completion  or 
acceptance  of  the  work,  is  an  independent  contractor,  and  not  an 
employee  under  the  Workmen's  Compensation  Act."69 

One  employed  to  draw  logs  at  $2.50  a  cord,  furnishing  his  own 
team  and  doing  the  work  at  his  own  convenience,  was  an  inde- 
pendent contractor.70 

A  painter  who  agreed  to  paint  a  certain  number  of  windows 
for  an  agreed  amount  and  was  doing  the  work  in  his  own  manner 
and  using  his  own  brushes,  was  an.  independent  contractor.71 

Where  a  contractor  when  asked  to  do  some  plastering  for  the 
owner  of  a  house  sent  a  plasterer,  who  furnished  the  material, 
kept  his  own  time  and  did  the  work  in  his  own  manner,  and  it 
was  the  plasterer's  practice  to  render  a  bill  for  labor  and  materials 
to  the  contractor,  the  plasterer  was  held  to  be  an  independent  con- 
tractor.72 

66.  Hungerford  v.  Bonn,  171  N.  Y.  S.   280,  2  W.  C.  L.  J.  682. 

67.  Smith  v  State  Workmen's  Ins.  Fund,  105  Atl.  90,  17  N.  C.  C.  A.  69t>. 

68.  Flickenger  et   al.  v.  Ind.  Ace.  Comm.  et    al.    (Gal.),  184  Pac.   851, 

5  W.  C.  L.  J.  8. 

69.  Barrett  v.  Selden-Breck  Construction  Co.,  103  Neb.  850,  174  N.  W. 
866,  5   W.  C.  L.  J.  291. 

70.  Robichaud's  Case,  234  Mass.  — ,  124  N.  B.   890,  5  W.  C.  L.  J.  247. 

71.  Prince  v.  Schwartz   et  al.,  190  App.  Div.    820,   180  N.  Y.    S.   703, 

6  W.  C.  L.  J.   727. 

72.  Woodhall  v.  Irwin  et.  al.,  201  Mich.  400,  167  N.  W.   845,  2  W.   C. 
L.  J.  296. 

168 


WHO  COMES  UNDER  THE  ACT.  §    38 

Where  a  man  was  employed  to  cut  wood  at  a  fixed  sum  per  cord 
using  his  own  method  and  time,  he  was  held  to  be  an  independent 
contractor  and  where  he  had  his  son  helping,  the  son  to  receive 
half  of  the  fathers  remuneration,  the  son  was  also  considered  an 
independent  contractor.78 

One  who  contracts  to  remove  freight  from  the  cars  of  one  road 
to  the  cars  of  another,  having  full  control  over  the  manner  of 
doing  the  work,  was  held  to  be  an  independent  contractor/4  and 
one  engaged  to  assist  him  was  not  entitled  to  compensation  from 
the  one  for  whom  he  contracted  to  perform  the  work.75 

Where  a  decedent  furnished  and  erected  a  scaffold  from  which 
he  fell  while  painting  a  sign,  he  was  held  to  have  been  an  inde- 
pendent contractor.76 

In  a  recent  Massachusetts  case  the  court  said:  "The  undisputed 
facts  shown  by  the  record  and  found  by  the  Industrial  Accident 
Board  are  that  at  the  time  of  the  injury  the  claimant  with  his  team 
was  hauling  a  load  of  ashes  for  the  town  of  Lee  to  be  used  in  the 
construction  of  a  public  way.  It  was  provided  by  his  contract  ot 
employment  that  he  should  furnish  the  team,  feed,  take  care  of  and 
drive  the  horses  for  a  fixed  daily  remuneration.  The  entire 
management  and  mode  of  transportation  were  under  his  control 
and  the  only  orders  given  by  the  town 's  foreman  were  to  direct  him 
where  to  go  for  the  ashes  and  after  the  ashes  had  been  loaded,  in 
which  work  he  took  no  part,  to  dump  the  ashes  at  a  designated 
place.  It  is  plain  as  a  matter  of  law  under  McAlister's  Case,  229 
Mass.  193,  118  N.  E.  326,  Centrello's  Case,  232  Mass.  456,  122  N. 
E.  560,  and  Winslow's  Case,  232,  Mass.  458,  122  N.  E.  561;  that 

73.  Fidelity    &  Deposit  Co.  of  Maryland  et  al.  v.    Brush    et  al.,  176 
Cal.  448,  168  Pac.  890,  1  W.  C.  L.  J.  153,  15  N.  C.  C.  A.  489;     Clark  v. 
Tall  Timber   Co.,  140  La.   380,  73   So.  239,  15    N.   C.  C.  A.     489;     In  re 
Anna  M.  Lutz,  2nd  A.  R.  U.  S.  C.  C.  219. 

74.  Smith  v.   State   Workmen's  Ins..  Fund,   262  Pa.   286,  105  Atl.  90, 
3  W.  C.  L.  J.  374,  17  N.  C.  C.  A.  691. 

75.  Zoltowski  v.  Lernes  Coal  &  Lumber  Co.,  —Mich. — ,  183  N.  W.  11 
(1921). 

76.  Rheinwald   v.  Builders'  Brick   &  Supply   Co.,   223  N.  Y.   572,    119 
N.  B.  1074,  17  N.  C.   C.  A.   683. 

169 


§  39  WORKMEN'S  COMPENSATION  LAWS. 

when  injured  he  was  not  an  employee  of  the  town  but  an  indepen- 
dent contractor.  It  having  been  rightly  held  and  ruled  by  the  board 
that  there  could  be  no  recovery  under  St.  1911,  c.  751,  and  amend- 
atory acts,  the  decree  dismissing  his  claim  for  compensation  must 
be  affirmed."77 

A  mail  carrier  was  held  to  be  an  independent  contractor  where 
the  route  was  let  to  the  lowest  bidder.78  Special  delivery  messen- 
gers are  employees  of  the  United  States.79  Where  a  contractor 
drove  a  team  himself  it  did  not  change  his  status  to  that  of  an 
employee.80 

§  39.  Workmen  Held  Employees  and  not  Independent  Con- 
tractors.— In  the  following  cases  the  workmen  were  held  to  be 
employees  and  not  independent  contractors :  A  cook  on  a  monthly 
salary  put  in  charge  of  a  boarding  house  by  a  manufacturing 
company  under  whose  direction  and  control  the  work  was  to  be 
done,  and  the  cook  to  have  in  addition  to  his  salary  all  profits 
from  boarding  the  company's  employees.81  A  company  engaged 
in  building  operations  employed  two  brothers  to  hire  and  pay  all 
its  employees  for  which  the  brothers  received  by  way  of  wages 
a  lump  sum  without  account  being  kept  of  their  time.82  A  mason 
employed  at  a  stated  sum  per  hour  to  hire  other  men  and  work 
according  to  the  employer's  plan,  though  the  latter  exercised  no 
control  over  the  workmen  employed  by  such  mason.83  A  vaude- 
ville actress  employed  on  a  vaudeville  circuit,  though  she  furnish- 
ed her  own  costumes  and  skates.84  A  man  was  employed  by  a 
company  to  superintend  the  construction  of  a  building  and  hire 

77.  Eckert's  Case,  233  Mass.  577,  124  N.  E.  421,  4  W.  C.  L.  J.  713. 

78.  In  re  Aaron  W.  Wallace,  3rd  A.  R.  U.  S.  C.  C.  152;    In   re  Wm. 
J.  Scott,  2nd  A.  R.  U.  S.  C.  C.  208;   In  re  Wm.  Nicholas,  2nd  A.  R.  U.  S. 
C.  C.  212. 

79.  In  re  Jacob  Cahan,  2nd  A.   R.  U.   S.   C.  C.  ,208. 

80.  Norton   v.   Day   Coal  Co.,  —  la   — ,  180  N.  W.  905. 

81.  Michael  v.  Western  Salt  Co.,    2   Cal.  I.  A.  C.  Dec.    501.   , 

82.  De  Palma  v.  The  Home  Construction  Co.,  1  Conn.  Comp.  Dec.  358. 

83.  Maddix  v.  Hotchgreve  Brewing  Co.,  154  Wis.  448,  143  N.  W.  189.  In 
re  Melbourn  G.  Meyers,  2nd  A.  R.  U.  S.  C.  C.  219. 

84.  Howard  v.  Republic  Theater,  2  Cal.  I.  A.  C.  Dec.  514. 

170 


WHO  COMES  UNDER  THE  ACT.  §   39 

men  to  do  the  work,  the  company  furnishing  the  money  to  pay 
the  men,  also  the  materials  for  building.85  A  carpenter  employed 
periodically  at  a  daily  wage  by  a  shop  owner  in  whose  shop  he 
is  put  to  work  to  fill  an  order  for  window  frames  on  the  basis  of 
twenty-five  cents  per  frame.86  A  driver  employed  for  no  definite 
time  to  haul  logs  for  a  lumber  company  and  subject  to  the  com- 
pany's right  to  discharge  him  at  any  time,  the  work  being  done 
under  the  control  of  the  company  both  as  to  time  and  place.87 
A  man  employed  to  collect  cream  and  deliver  butter  at  a  stipu- 
lated wage,  receiving  an  additional  amount  for  the  use  of  his 
automobile,  and  to  hire  a  helper,  the  employer  exercising  full 
control  over  both  the  man  and  his  helper.88  Bowling  alley  boys 
working  periodically  at  setting  up  pins  and  receiving  twenty- 
five  per  cent  of  the  amount  received  by  the  owner  of  the  alleys 
for  each  game  served  by  the  boys.89  A  laborer  engaged  in  felling 
specified  trees  and  cutting  them  into  cord  wood  at  $1.00  per  cord, 
out  of  which  he  paid  helpers  at  the  same  rate  he  himself  re- 
ceived.90 One  employed  by  a  manufacturing  Company  to  squeeze 
boxes  in  its  factory  at  so  much  per  box,  with  the  right  to  hire 
and  pay  his  own  assistant,  receiving  a  stipulated  price  per  box, 
but  iising  the  company's  machinery  and  doing  the  work  as  and 
when  directed  by  its  foreman.91  A  mechanic  to  put  on  lath  in  a 
state  institution  at  twenty-five  cents  a  bunch,  who  was  authorized 

85.  Rankel  v.  Buckstaff-Edwards  Co.,  120  N.  W.  269,  138  Wis.  442,  20  L. 
R.  A.  (N.  S.)  1180. 

86.  Hale  v.  Johnson.  2  Cal.  I.  A.  C.  Dec.  339. 

87.  Tuttle  v.  Embury-Martin  Lumber  Co.,  192  Mich.  385,  158  N.  W.  875; 
15  N.  C.  C.  A.  496;    Van  Simaeys  v.  Cook  Co.,  201  Mich.  540,  167  N.  W. 
925,  2  W.  C.  L.  J.  323;    Western  Indemnity  Co.  v.  Prater,  —  Texas  — ,  213 
N.  W.  355,  4  W.  C.  L.  J.  455. 

88.  Golden  v.  The  Delta  Creamery  Co.,  2  Cal.  Ind.  Ace.  Com.  743,  12  N. 
C.  C.  A.  385. 

89.  Weaver  v.  Eyster  &  Sione,  l.Cal.  I.  A.  C.  Dec.  563. 

90.  Pearce  v.  Frapwell,  3  Cal.  Ind.  Ace.  Com.  75;  Fischer  v.  Dunshee,  2 
Cal.  Ind.  Ace.  Com.  849. 

91.  Messmer  v.  Bell  &  Coggeshall  Co.,  117  S.  W.  347.  133  Ky.  19;  Aisen- 
berg  v.  C.  F.  Adams  Co.,  —  Conn.  — ,  (1920)  111  Atl.  591.  7  W.  C.  L.  J. 
28;   Franklin  Coal  &  Coke  Co.  v.  Indus.  Comm.  —111.  — ,  (1920),  129  N. 
E.811. 

171 


§  39  WORKMEN'S  COMPENSATION  LAWS. 

to  secure  other  men  to  help  him  to  whom  he  paid  the  saint; 
amount.92  A  quarry  worker  paid  a  stipulated  price  for  each  day 
worked,  although  he  was  allowed  to  choose  his  own  helpers  and 
use  his  judgment  as  to  where  to  work.93  A  plumber  hired  to  fix 
some  pipes,  and  supplied  with  materials  by  the  owner  who  super- 
intended the  work  and  paid  him  by  the  hour.9*  Where  A 
arranged  with  B  to  cut  wood  for  $4.50  a  cord  and  B  arranged 
with  C  to  do  the  work  for  $4.25  a  cord  and  C  arranged  with  D 
to  do  the  work  for  $4.00  a  cord  and  D  was  injured  at  the  work, 
A  was  his  employer.95  A  worker  who  hauled  stones  at  a  stip- 
ulated price  per  day  and  was  allowed  to  work  for  other  people 
when  not  badly  needed  by  his  first  employer.96  One  who  employ- 
ed carpenters  to  erect  a  building,  directed  the  details  of  the 
work  paid  the  carpenters  and  had  the  right  to  discharge  them, 
but  looked  to  the  owner  of  the  building  to  reimburse  him  for 
the  carpenter's  wages.97  A  construction  superintendent  who 
had  great  liberty  of  action  as  to  purchase  of  material  and  man- 
ner of  construction  by  reason  of  having  a  peculiar  skill  and 
knowledge  as  the  inventor  of  an  apparatus  used  in  construction 
work.98  A  member  of  a  partnership  employed  by  the  principal 
contractor  on  a  building  to  do  the  glazing  work  and  was  injured 
while  overseeing  the  unloading  of  glass  for  the  contractor  when 
it  arrived  for  which  he  received  compensation  additional  to 
that  received  under  the  partnership  contract  for  the  glazing 
work.99  A  person  employed  to  collect  bills  for  about  two  hours 

92.  Jones  v.  Commonwealth  of  Mass.,  2  Mass.  Ind.  Ace.  Bd.  721;  McNally 
v.  Diamond  Mills  Paper  Co.,  223  N.  Y.  83,  119  N.  E.  242,  2  W.  C.  L.  J.  110. 

93.  Paterson  v.  Lockhart,  (1905),  7  F.  954  Ct.  of  Sess. 

94.  McNally  v.  Fitzgerald  (1914)  7  B.  W.  C.  C.  24  C.  A. 

95.  Lachuga  v.  Kataoka,  2  Cal.  Ind.  Ace.    Com.    764,     - 

96.  O'Donnell  v.  Clare  County  Coucil,  6  B.  W.  C.  C.  457  C.  A. 

97.  Battey  v.  Stanage,  3  Cal.  Ind.  Ace   Com.  288;   Yolo  Water  etc.,  Co., 
v.  Industrial  Ace.  Comm.,  35   Cal.  App.  14,  168   Pac.  1146,  1  W.  C.  L.  J. 
499. 

98.  Turner  v.  Oil  Pumping  and  Gasoline  Co.,  2  Cal.  Ind.  Ace.  Com.  471. 
Rosedale  Cemetery  Assn.  v.  Industrial  Ace.  Comm.  37  (Cal.)  App.  706,  174 
Pac.  351,  2  W.  C.  L.  J.  754.      . 

99.  Dyer  v.  James  Black  Masonry  and  Contracting  Co.,  192  Mich.  400, 
158  N.  W.  959. 

172 


WHO  COMES  UNDER  THE  ACT.  §   39 

per  day  at  a  compensation  agreed  upon  at  the  time  and,  with 
one  unimportant  exception,  was  not  employed  by  anyone  else.1 
A  miner  employer  to  mine  coal  at  a  fixed  price  per  ton,  using 
his  own  tools  and  being  paid  extra  for  timbering.2  One  employed 
to  draw  pillars  in  a  coal  mine  at  a  certain  price  per  ton,  but 
working  under  the  same  rules  and  control  as  the  other  em- 
ployees.8 A  person  who  makes  a  series  of  subcontracts  all  of 
which  are  guaranteed  by  the  employer,  merely  as  a  subterfuge 
in  an  attempt  to  escape  liability  under  the  Compensation  Act.4 
A  foreman,  as  to  those  employees  that  do  not  know  that  he  has 
an  independent  contract  with  his  principal.8  A  window  washer 
employed  by  a  janitor  of  a  public  school  regularly,  twice  a  year, 
at  a  sum  based  upon  the  time  estimated  to  complete  the  work.6 
A  man  employed  to  haul  milk  at  a  certain  price  per  gallon,  who 
furnished  his  own  horse  and  wagon.7  Two  wood  choppers  cut- 
ting wood  at  a  stipulated  price  per  cord,  who  at  the  suggestion 
of  their  employer  hired  a  third  person  to  help  them,  the  com- 
pensation being  divided  equally  among  the  three.8  A  carpenter 
working  for  a  lump  sum  for  his  labor,  the  amount  thereof  being 
estimated  upon  the  number  of  days  required  to  finish  the  work, 
and  he  not  supplying  the  materials  or  paying  his  assistants, 
and  being  subject  to  the  direction  of  the  owner.8  A  person  who 
contracted  to  care  for  176  naptha  lights,  receiving  a  stipulated 

1.  Shouler  v.  Jacob  Greenberg,  1.  Cal.  Ind.  Ace.  Com.  (Part  11)  146,  11  N. 
C.  C.  A.  382. 

2.  Cangreme  v.  Alberta  Coal  Mining  Co.,  7  B.  W.  C.  C.  1020; Indiana  Win- 
dow Glass  Co.  v.  Mauck,  —  Ind.  App.  — ,  128  N.  E.  451,  6  W.  C.  L.  J.  657. 

3.  Allen  v.  Bear  Creek  Coal  Co.,  43  Mont.  269,  115  Pac.  673. 

4.  Mezansky  v.  Sissa,  1  Conn.  Comp.  Dec.  430. 

5.  Summers  v.  National  Tent  and  Awning  Co.,  2  Cal.  Ind.  Ace.  Com.  778; 
Bowie  v.  Coffin  Valve  Co.,  86  N.  E.  14,  200  Mass.  571;  McClure  v.  Detroit 
Southern  R.  Co.,  109  N.  W.  847,  146  Mich.  457. 

6.  Sablnl  v.  Loura,  3  Cal.  Ind.  Ace.  Com.  354. 

7.  Clark  v.  Bailieborough  Co-operative  Agricultural  &  Dairy  Society  Ltd., 
47  Ir.  L.  T.  R.  113  C.  A. 

8.  Bush  v.  Union  Commission  Co.,  2  Cal.  Ind.  Ace.  Com.  632. 

9.  Holmes  v.  Japan  Beautiful  Nippon  Kyos  In  Kaisha,  Inc.,  2  Cal.  I.  A. 
C.  Dec.  894;  Kackel  v.  Serviss,  180  App.  Div.  54,  167  N.  Y.  S.  348.  1  W. 
C.  L.  J.  235;     Thompson  v.  Twiss,  90  Conn.  444,   97  Atl.  328. 

173 


§  39  WORKMEN'S  COMPENSATION  LAWS. 

amount  per  light,  and  engaged  other  men  to  assist  him,  and  the 
employer  retained  the  right  to  direct  him  as  to  the  way,  means 
and  manner  of  doing  the  work.10  A  man  hired  to  haul  stone 
from  a  quarry,  and  paid  a  fixed  sum  per  load.11  A  woodworker 
engaged  to  cut  pieces  of  wood  and  put  them  together  into  lamps, 
receiving  thirty-five  cents  per  lamp,  and  allowed  to  hire  two 
helpers  to  expedite  the  work,  but  using  the  employer's  machinery 
and  material.12  A  ship's  mate,  who  employed  its  sailors.13  A 
contractor  who  agreed  to  superintend  certain  building  and  clear- 
ing work  in  accordance  with  instructions  from  the  property 
owner.14  One  employed  by  the  hour,  using  either  his  own  wagon 
or  one  of  defendants,  and  subject  to  discharge  at  any  time.15 
One  employed  by  a  contractor  as  a  superintendent  of  construc- 
tion.16 One  employed  by  a  contractor  to  supervise  the  work  of 
wrecking  a  smokestack  for  $140,  with  a  guarantee  that  if  it  did 
not  amount  to  $5.00  per  day  the  contractor  would  make  up  the 
deficiency.17  A  real  estate  agent  agreeing  to  devote  his  entire 
time  to  selling  his  employer's  lots  on  a  commission.18  A  bread 
salesman  who  was  paid  a  per  cent  of  the  retail  price  of  the  bread 
he  sold.19  A  journeyman  paperhanger,  hired  by  the  foreman 

10.  Dodge   v.   Massachusetts   Employees    Insurance   Ass'n.,     1    Mass.. 
Ind.  Ace.  Bd.  52. 

11.  Howell  v.  Thomas,  120  L.  T.  Jo.  79  C.  A.;    Jones  v.  Penwyllt  Dinas 
Silica  Brick  Co.,  6  B.  W.  C.  C.  491;    Evans  v.  Same,  4  W.  C.  C.  101. 

12.  Shaffer  v.  Southern  California  Hardwood  Mfg.  Cc.,  2  Cal.  Ind.  Ace. 
Com.  886. 

13.  Nelson  v.  Western  Steam  Nav.  Co.,  100  Pac.  325,  52  Wash.  177. 

14.  Opitz  v.  Hoertz,  194  Mich.  626,  161  N.  W.  866,  15  N.  C.  C.  A.  498; 
Welden  v.  Skinner,  etc.,  Corp.  103  Wash.  243,  174  Pac.  452,  2  W.  C.  L.  J. 
860;   Wislow  v.  Wellington,  —  N.  H.  —  (1920)  111  Atl.   631,  7  W.  C.  L. 
J.  85. 

15.  Columbia  School  Supply  Co.  v.  Lewis,  63,  Ind.  App.  386,  116  N.  E. 
1. 

16.  Otis  Elevator  Co.  v.  Miller,  153  C.  C.  A.  302,  240  Fed.  376. 

17.  American  Steel  Foundries  v.  Industrial  Board,  284  111.  99,  119  N.  E. 
902,  2  W.  C.  L.  J.  463;  Cummings  v.  Underwood  Silk  Fabric  Co.,  184  App. 
Div.  456,  171  N.  Y.  S.  1046,  2  W.  C.  L.  J.  923. 

18.  Brown  v.  Industrial  Ace.  Comm.,  174,  Cal.  457,  163  Pac.  664;  Cameron 
v.  Pillsbury,  173  Cal.  83,  159  Pac.  149,  14  N.  C.  C.  A.  496. 

19.  Easton  v.  I.  A.  Comm.  of  Cal.,  34  Cal.  App.  321,  15  N.  C.  C.  A.  491, 
167  Pac.  288. 

174 


WHO  COMES  UNDER  THE  ACT.  §   39 

of  a  department  store,  and  directed  by  the  foreman,  whenever 
such  work  was  required  by  a  purchaser,  to  go  to  the  purchaser's 
residence  and  hang  paper  and  paid  by  the  roll  with  expenditures 
for  carfare  and  paste.20  An  employee  who  is  paid  by  the  ton 
for  unloading  coal  and  hires  and  pays  his  own  help,  the  employer 
retaining  control  over  the  manner  in  which  the  coal  is  to  be  un- 
loaded and  having  the  right  to  discharge  him  at  any  time  with- 
out reason.21  Four  men  who  agreed  to  go  with  the  owner  to 
prune  his  vineyard  at  a  fixed  price  per  acre,  they  being  directed 
and  controlled  by  the  owner.22  An  awning  remover,  working  for 
any  one  needing  his  services,  who  is  engaged  to  do  piece  work 
for  a  house  owner  who  retains  control  and  direction  of  the  work 
with  the  right  to  discharge  him  for  disobedience.28  A  foundry 
worker,  unloading  coke  from  freight  cars  for  a  certain  sum  per 
ton,  where  there  is  no  contract  to  unload  a  certain  number  of 
tons  or  work  for  a  certain  period  of  time,  the  worker  having  the 
right  to  quit  and  the  foundry  company  having  the  right  to  dis- 
charge him  at  any  time  without  liability.24  A  carpenter,  working 
by  the  hour  and  paid  weekly  by  a  miller  to  make  additions  and 
repairs  at  the  mill  under  the  miller's  supervision,  first  working 
a  few  weeks  in  September  and  later  returning  to  do  more  work 
in  November.25  An  association  formed  as  a  medium  of  employ- 
ment of  members,  collecting  their  pay  and  distributing  same 
without  deduction  and  without  control  over  the  work  of  the  mem- 
bers is  not  an  independent  contractor.2*  Musicians,  although  fur- 
nished by  the  leader  twice  each  week  to  play  in  an  amusement 

20.  In  re  McAlister,  118  N.  E.  326,  229  Mass.  193,  1  W.  C.  L.  J.  618; 
Board  of  Commissioners  of  Green  County  v.  Shertzer,  —  Ind.  App.  — , 
(1920),  127  N.  E.  843.  6  W.  C.  L.  J.  310. 

21.  Decatur  R.  &  Light  Co.  v.  Ind.  Bd.  of  111.,  276  111.  472,  114  N.  E. 
915,  15  N.  C.  C.  A.  495;    Kelley  v.  Delaware.  L.  &  W.  R.  Co.,  —  Pa.  — ,  113 
All.  419.  8  W.  C.  L.  J.  130. 

22.  Guisti  v.  Covell  Bros,  et  al..  5  Cal.  I.  A.  C.  Dec.  137. 

23.  Abromowitz  v.  Hudson  View  Const.  Co.,  177  N.  Y.  S.  187,  188  App. 
Div.  356,  4  W.  C.  L.  J.  538. 

24.  Muncie  Foundry  ft  Machine  Company  v.  Thompson,  123  N.  E.  196 
(Ind.  App.),  4  W.  C.  L.  J.  56. 

25.  Caca  v.  Woodruff,  123  N.  E.  120  (Ind.  App.),  4  W.  C.  L.  J.  SI. 

26.  Hokomb  v.  Standard  Oil  Co.,  et  al.,  5  Cal.  I.  A.  C.  D.  240. 

175 


§  39  WORKMEN'S  COMPENSATION  LAWS. 

park,  who  stipulated  the  amount  of  compensation  they  were  to 
receive,  were  not  employees  of  an  independent  contractor.27  A 
mechanic,  engaged  by  defendant  to  take  down  an  old  smokestack 
and  put  up  a  new  one,  who  used  his  own  appliances  and  furnished 
needed  help,  in  addition  to  two  men  assigned  by  his  employer,  and 
who  had  charge  of  the  work  and  was  told  to  present  his  bill,  and 
whose  heirs  after  his  death  were  paid  a  bill  for  work  done  by  the 
hour,  was  an  employee  and  not  an  independent  contractor.28  The 
mere  fact  that  compensation  is  fixed  on  the  amount  of  work  done, 
rather  than  on  the  amount  of  time,  does  not  make  a  workman  an 
independent  contractor.29 

A  man  hired  to  work  by  the  day,  as  soon  as  certain  work  was 
ready,  and  pending  the  commencement  of  the  work  was  engaged 
in  stripping  engines  at  an  agreed  sum  per  engine,  using  tools  of 
employer.30 

Where  a  man  furnished  a  truck  and  his  own  services  for  defi- 
nite hours  during  the  day,  under  the  direction  and  control  of 
the  company,  and  agreed  to  so  work  for  six  months.31 

An  excavation  contractor,  under  an  agreement  by  which  he 
was  to  receive  the  use  of  timbers  and  blocking,  in  return  for  his 
services  and  the  use  of  his  engine  and  derrick  by  the  shoring 
contractor,  his  subcontractors,  and  their  employees,  when  ren- 
dering such  services.32 

A  journeyman  tailor,  working  at  home  on  piece  work  was  held 
to  be  employee.33 

A  special  delivery  letter  carrier  was  held  to  be  an  employee.84 

27.  Boyle   v.  Mahoney  &    Tierney,  103  Atl.  127,  92  Conn.  404,  I.  W. 
C.  L.  J.  937. 

28.  Cummings  v.  Underwood  Silk  Fabric  Co.,  184  N.  Y.  App.  Div.  456, 
171  N.  Y.  S.  1046. 

29.  Komula  v.  General  Ace.,  etc.,  Assur.  Corp.  165  Wis.  520,  162  N.  W. 
919. 

30.  Cinofsky  v.  Ind.  Comm.  (111.)  125  N.  E.  286,  5  W.  C.  L.  J.  185. 

31.  Eng-Skell  Co.  v.  Ind.  Ace.  Comm.  (Cal.  App.)  186  Pac.  163,  5  W.  C. 
L.  J.  352. 

32.  Mandatto  v.  Hudson  Shoring  Co..,  190  App.  Div.  71,  179  N.  Y    S. 
458,  5  W.  C.  L.  J.  436. 

33.  Liberatore  v.  Friedman,  224  N.  Y.  710,  121  N.  E.  876,  17  N.  C.  C.  A. 
688. 

34.  In  re  Jacob  Cahan,  2nd  A.  R.  U.  S.  C.  C.  208. 
176 


WHO  COMES  UNDER  THE  ACT.  §   4^ 

A  mechanic  repairing  engines  for  contractors  at  a  specified 
rate  per  hour,  varying  with  the  class  of  work  performed  by  him, 
for  which  he  rendered  a  bill  for  the  gross  amount,  without 
itemizing  it,  his  wages  forming  a  part  of  the  payroll  upon  which 
the  insurance  premium  was  paid,  is  an  employee  and  not  an  in- 
dependent contractor.88 

§  40.  Owner  of  Premises  as  Employer  of  the  Employees  of 
his  Contractors  and  Subcontractors. — Most  of  the  compensation 
acts  expressly  or  impliedly  provide  that  any  person  who  has 
work  done  under  contract  on  or  about  his  premises,  which  is  an 
operation  of  the  usual  business  which  he  there  carries  on,  shall  be 
deemed  an  employer  and  shall  be  liable  under  the  act  to  such 
contractor,  his  sub-contractors,  and  their  employees,  when  in- 
jured or  killed  on  or  about  the  premises  of  the  employer  while 
doing  work  which  is  in  the  usual  course  of  his  business. 

These  provisions  as  a  rule  are  not  held  to  apply  to  the  owner 
of  premises  upon  which  improvements  are  being  erected,  demol- 
ished, altered  or  repaired  by  an  independent  contractor.  Such 
contractor  is  deemed  to  be  the  employer  of  the  employees  of  his 
subcontractors  and  their  subcontractors  unless  the  act  specific- 
ally otherwise  provides,  as  some  of  them  do.88 

Some  of  the  acts  provide  that  if  the  owner  of  the  premises  fails 
to  require  his  contractor  to  insure  his  compensation  liability  to 
the  employees  whom  he  employs  on  the  premises,  then  the  owner 
of  the  premises  becomes  jointly  and  severely  liable  therefore 
with  his  contractor. 

It  was  so  held  in  an  Illinois  case,  where  a  corporation  con- 
tracted with  one  to  wreck  a  smokestack  for  $140.00,  and  an  em- 
ployee of  the  contractor  was  killed  in  doing  the  work;  the 
corporation  not  having  required  its  contractor  to  insure  his  lia- 
bility, was  required  to  pay  the  compensation  due.87  But  it  was 

35.  State  Indus.  Comm.  v.  Tassell  &  Fairbanks,  184  N.  Y.  Supp.  426, 
7  W.  C.  L.  J.  104. 

36.  Helton  v.  Tall  Timber  Lbr.  Co.  of  La.,  —  La.  — ,  (1920),  86  So. 
729,  7  W.  C.  L.  J.  299. 

37.  American  Steel  Foundries  Co.  v.  Industrial  Bd.  et  al.,  284  111.  99, 
119  N.  E.  902,  2  W.  C.  L.  J.  462. 

177 

W.  C.— 12 


§  40  WORKMEN'S  COMPENSATION  LAWS. 

held  in  the  same  state  that  a  grocer  was  not  liable  for  injuries 
to  an  employee  of  a  contractor,  who  was  building  a  founda- 
tion for  the  grocer's  dwelling  house.  The  contractor  failed  to 
take  out  insurance,  but  as  the  grocer  was  not  "engaged  in  busi- 
ness of  erecting  or  altering  dwelling  houses,"  he  was  not  lia- 
ble.38 

It  has  been  held  under  the  California  Act  that  the  commission 
has  no  authority  to  enter  an  award  against  a  principal  or  the 
principal's  insurance  carrier,  because  of  injuries  to  an  employee 
of  an  independent  contractor  working  on  the  principal's  prem- 
ises.39 A  similar  decision  was  rendered  in  an  Illinois  case. 
Section  1,  of  the  Illinois  Act  of  1913,  providing  that  a  princi- 
pal shall  be  liable  to  the  employee  of  a  contractor  when  the  con- 
tractor does  not  carry  Workmen's  Compensation  insurance,  does 
not  apply  to  the  owner  of  land,  who  enters  into  a  contract  with 
another  to  erect  a  building  thereon,  but  applies  in  such  case  only 
as  between  the  contractor  and  subcontractor.40 

The  Minnesota  Act  contains  the  following  typical  provision 
"Any  person  who  creates  or  carries  into  operation  any  fraudu 
lent  scheme,  artific  or  device  to  enable  him  to  execute  work 
without  himself  being  responsible  to  the  workmen  for  the  pro- 
visions of  this  act,  shall  himself  be  included  in  the  term  'em- 
ployer,' and  be  subject  to  all  the  liabilities  of  employers  under 
this  act." 

It  has  also  been  held  under  the  Illinois  act  that  a  contractor 
is  liable  to  an  employee  of  a  subcontractor  if  he  enters  into  a 
fraudulent  scheme  to  avoid  liability  for  compensation.41 

38.  Alabach    v.    Ind.  Comm.    et     al.,  291   111.    338,   126   N.  E.    163,  5 
W.  C.  L.  J.  667. 

39.  Western    Indemnity    Co.    v.    State    Industrial    Accident    Comm., 
(1916),    172  Cal.  766,  158    Pac.  1033;     Sturdivant  v.  Pillsbury,  172  Gal. 
581,   158  Pac.   222;     Carstens    v.  Pillsbury,    172   Cal.  572,  158  Pac.  2i8; 
Packett   v.    Moretown     Creamery    Co.,    91    Vt.    — ,    99    Atl.    638:     First 
Christian  Church  v.  I.  A.  Comm.,  —  Cal.  — ,  160  Pac  675. 

40.  Littledair  v.  Crowley,  1  Bull.  111.  Ind.  Bd.  25. 

41.  Parker    Washington    Co.    v.    Industrial    Board,    274    111.    498,    113 
N.  E.    976;     Butler  St.  Foundry  &  Iron    Co.  v.  Ind.    Bd.,    277  111.    70, 
115  N.  E.  122. 

178 


WHO  COMES  UNDER  THE  ACT.  §   40 

It  was  held  under  the  Connecticut  Act  that  where  the  claim- 
ant, a  carpenter,  was  working  for  a  subcontractor  on  premises 
owned  and  controlled  by  the  respondent,  and  doing  work  which 
was  part  of  the  respondent's  business  and  it  further  appeared 
likely  from  the  evidence  that  the  contracts  were  mere  subter- 
fuges to  escape  liability,  compensation  should  be  awarded.  The 
commissioner  said:  "Section  33,  of  the  Compensation  Act  is  in- 
tended to  prevent  subterfuges  being  successfully  used  to  avoid 
the  purpose  of  this  statute  and  when  taken  in  connection  with 
Section  5,  seems  to  me  to  make  it  my  clear  duty  to  render  an  award 
in  favor  of  this  claimant.  If  a  series  of  sub-contracts  of  this 
character  can  be  so  made  as  to  exempt  everybody  who  has  any 
responsibility  from  any  liability  where  nine  or  ten  people  are 
employed,  it  would  be  very  easy  to  make  arrangements  which 
would  exempt  everybody  who  had  any  responsibility  where  nine 
or  ten  hundred  were  employed,  and  thus  the  well-settled  policy 
of  the  state  adopted  after  mature  consideration  would  be  de- 
finitely set  at  naught."42 

Where  an  exhibitor  secured  floor  space  in  an  exhibition  build- 
ing and  employed  a  contractor  to  erect  and  decorate  a  booth, 
directing  to  some  extent  the  work  of  the  contractor's  employee, 
it  was  held  that  under  the  California  Act,  the  exhibitor  was  lia- 
ble as  principal  to  an  injured  employee  of  the  contractor.43  So 
it  has  been  held  that  the  liability  of  a  principal  or  general  con- 
tractor, upon  whose  premises  an  employee  of  a  contractor  has 
been  injured,  is  analogous  to  that  of  a  surety,  and  he  must  pay 
any  compensation,  for  which  the  immediate  employer  is  liable, 
as  in  the  case  of  an  immediate  employer  who  was  a  contract 
painter  and  employed  a  painter  to  help  him  paint  the  house  of 
his  principal.  The  painter  was  a  casual  employee  as  to  both  the 
contractor  and  principal,  and  employed  in  the  regular  trade  or 
business  of  the  contractor,  but  not  of  the  principal.  The  com- 
mission held  that  the  contractor  or  immediate  employer  being 
liable  under  the  Compensation  Act,  for  injuries  sustained  by  the 


42.  Mezansky    v.  Sisaa,  1  Conn.  Comp.    Dec.  431. 

43.  Brain   v.   Eisnfelder,  2   Cal.  I.  A.   C.  Dec     30. 


179 


§  40  WORKMEN'S  COMPENSATION  LAWS. 

painter,  the  principal  is  also  liable,  though  he  would  not  have 
been  liable  if  the  painter  had  been  employed  directly  by  him.44 

In  another  case  it  was  held  that  where  a  ship  owner  employed 
a  contractor  to  clean  the  ship  boilers,  that  the  employees  of  the 
contractor  were  not  employees  of  the  ship  owner,  and  that  the 
work  of  boiler  scaling  on  a  ship  is  not  work  in  the  course  of  or 
for  the  purposes  of  his  trade  or  business,  within  the  meaning  of 
the  Compensation  Act.45 

The  above  mentioned  provisions  do  not,  therefore,  as  a  general 
rule  apply  to  or  change  the  law  of  independent  contractor  so  as 
to  bring  contractors  and  subcontractors  under  the  act  unless  it 
can  be  definitely  shown  that  they  are  engaged  in  the  usual  busi- 
ness which  their  principal  carries  on,  on  or  about  the  premises 
where  the  contractors  and  subcontractors  are  engaged  in  their 
work.  So  it  has  been  held  that  it  was  not  part  of  the  employer 's 
or  principal's  trade  or  business  where  a  contractor  employed 
workmen  to  do  some  tarring  on  the  premises  of  chemical  manu- 
facturers;46 or  where  manufacturers  employed  a  deal  porter  by 
contract  to  pile  timber  on  their  premises,  when  the  manufactur- 
ers never  did  such  work  themselves,  it  not  being  customary  for 
persons  in  their  trade  to  do  it;47  or  owners  of  a  barge,  where 
they  employed  the  mate  ;48  or  where  a  firm  of  drug  grinders  em- 
ployed a  contractor  or  ganger  to  unload  a  barge  of  sulphur  and 
store  it  in  their  warehouse.49 

But  in  a  Vermont  case  it  was  held  that  a  teamster  employed 
by  one  who  has  a  contract  with  the  manufacturer  to  haul  lumber 
at  a  certain  price  per  thousand  feet,  is  entitled  to  obtain  com- 

44.  Neel  v.  White,  2  Gal.  I.  A.  C.  Dec.  933;     Wallace  v.   Pratchner, 
2  Cal.  I.  A.   C.  Dec.   661. 

45.  Spiers  v.  Elderslie   Steamship  Co.,    (1909),   46   Scotch  L.  R.  893, 
2  B.  W.   C.  C.  205. 

46.  Zugg   v.   J.   &   J.   Cunningham,   Ltd.,   1   B.   W.   C.   C.   257,    Ct.   of 
Sess. 

47.  Hockley   v.  West  London    Timber   &  Joinery  Co.,  7  B.   W.  C.  C. 
652  C.  A.;     Packett    v.    Moretown    Creamery  Co.,   91    Vt.    — ,   99  Atl. 
638,  15   N.  C.  C.  A.  501. 

48.  Hayes  v.  S.  J.  Thompson  &  Co.,  6  B.  W.  C.  C.,  130  C.  A.;  Luckwill 
v.  Auchin  Steam  Shipping  Co.,  Ltd.,  6  B.  W.  C.  C.  51,  C.  A. 

49.  Bobbey  v.  Crosbie  8  B.  W.  C.  C.  236   C.  A. 
180 


WHO  COMES  UNDER  THE  ACT.  §   41 

pensation  from  the  manufacturer  of  the  lumber,  for,  the  true 
test  of  employment  is  whether  the  work  being  done  pertains  to 
the  business,  trade,  or  occupation  of  the  claimed  employer  car- 
ried on  by  it  for  pecuniary  gain ;  and  if  so  the  fact  that  the  work 
is  being  done  through  the  medium  of  an  independent  contractor 
does  not  relieve  the  employer  from  liability.60 

§  41.  On  or  About  the  Premises. — It  has  been  held  that  work 
is  not  done  "on  or  about  one's  premises,"  within  the  meaning  of 
the  acts,  where  a  workman  on  a  new  building  was  killed  on  a 
public  road  from  110  to  160  yards  away  from  the  building,  while 
carting  water  to  it  ;51  where  a  workman  was  injured  while  doing 
some  work  he  had  been  sent  to  do  on  a  ship  at  a  dock  about  550 
yards  from  the  factory  of  his  employers;52  where  a  workman 
was  killed  at  a  place  about  two  miles  from  the  "engineering 
work"  to  which  he  was  hauling  sand  from  a  pit;83  where  a  work- 
man hired  by  a  subcontractor  to  cart  rubbish  was  killed  in  the 
road  two  miles  from  the  site  of  his  work  ;54  where  a  workman 
sustained  an  injury  while  stacking  rails  700  yards  from  the 
"engineering"  work  of  his  employers;55  where  a  miner  was  fatal- 
ly injured  at  a  point  400  yards  from  the  mine  pit,  while  trans- 
ferring lumber  from  a  railroad  to  the  mine  by  means  of  a  colliery 
cart;58  where  a  driver  met  with  an  accident  on  the  public  road 
two  miles  from  the  factory  from  which  he  was  hauling  lumber 
to  a  building  in  the  course  of  construction." 

But  it  has  been  held  that  where  a  workman  was  carrying  goods 
from  a  factory  building  to  a  point  about  32  feet  distant  on  the 
other  side  of  the  street  and  was  there  injured  the  injury  occurred 
about  the  factory;58  that  where  a  workman  was  injured  while 

50.  Boyle  v.  Parker  Young  Co.,  — Vt.    -       1921,  112  Atl.    385. 

51.  Penn  v.  Miller,  2  W.  C.  C.  65  C.  A. 

52.  Barclay,  Carle  &  Co.,  Ltd.,  v.  McKinnon,  3  F.  436  Ct.  of  Sess. 

53.  Pattison  v.   White   &  Co.,  6  B.   W.  C.   C.  61  C.  A. 

54.  Andrews  v.   Andrews  &  Mears,  1  B.  W.  C.  C.  264. 

55.  Black  v.   Dick   Kerr  &  Co.,  Ltd.,   8  W.   C.  C.  40,  H.  L. 

56.  Coylton  Coal  Co.  v.  Davidson,  7  F.  727,  Ct.  of  Sess. 

57.  Whitton  v.  Bell  &  Sime,  Ltd.,  IF,  942,  Ct.  of  Sess. 

58.  McQovern   v.   Cooper  &  Co.,   4   F.  249,  Ct.   of  Sess. 

181 


§  42  WORKMEN'S  COMPENSATION  LAWS. 

engaged  in  loading  a  cart  in  the  street  near  the  entrance  to  his 
employer's  premises  he  was  about  the  premises.59 

§  42.  Liability  of  Owner  or  Lessor  to  Employees  of  Lessee.— 
Most  of  the  acts  either  contain  express  provisions  or  imply 
liability  for  compensation  on  the  part  of  the  owner  or  lessor 
when  the  relation  of  lessor  and  lessee  is  created  for  the  fraud- 
ulent purpose  of  avoiding  liability. 

It  has  been  held  that  the  lessee  of  a  coal  mine  is  an  indepen- 
dent contractor  although  the  lessor  reserves  the  right  to  inspect 
the  premises,  and  it  is  agreed  that  all  the  workings  on  the  prem- 
ises shall  be  done  under  the  general  supervision  of  the  superin- 
tendent of  the  lessor.60 

Under  the  California  Act  a  lessee  is  not  a  contractor  of  the 
lessor  and  the  lessor  is  not  liable  for  injuries  to  employees  of  the 
lessee  or  his  subcontractors.61  So  in  the  case  of  a  corporation 
that  owned  an  oil  well  which,  in  default  of  payment  of  a  mort- 
gage thereon,  it  turned  over  to  the  mortgagee  as  lessee  to  operate 
and  collect  the  income  to  pay  the  mortgage,  it  was  held  that 
the  corporation  was  not  the  employer  of  an  injured  workman 
employed  by  the  mortgagee  or  lessee  to  look  after  the  well.62 

In  an  Ohio  case  where  a  coal  company,  which  had  temporarily 
suspended  operation  of  its  mines,  leased  a  portion  of  its  lands  to 
two  former  employees  who  employed  their  own  help,  it  was  held 
that  the  lessor  company  was  not  the  employer  of  help  employed 
by  the  lessees.63  It  has  been  held  under  the  Wisconsin  Act  less- 
ors and  lessees  do  not  sustain  the  relation  of  principal  and  con- 
tractor to  each  other,  and  that  where  an  employee  of  the  lessee 

59.  Powell  v.  Brown,    12    B.  157  C.  A.  1   W.  C.  C.    44. 

60.  Bokoshe   Smokeless    Coal   Co.   v.    Morehead,     126    Pac.     1033,     34 
Okla.  424. 

61.  Brain   v.   Eisnfelder,   2   Cal.   Ind.   Ace.   Com.   36,   11   N.   C.   C.   A. 
378;     Cypher    v.    United    Development    Co.,     1     Cal.    Ind.    Ace.     Com. 
(Part  II)   425. 

62.  Farris  v.    Patomac  Oil  Co.,  2  Cal.  Ind.  Ace.  Com.  462. 

63.  In  re  Monroe,  1  Bull.  Ohio  Ind.  Com.  186;     See  also  Powers  v. 
Hocking  Valley  Ry.  Co.,   31   Ohio  Cir.  Ct.  488. 

182 


WHO  COMES  UNDER  THE  ACT.  §   43 

is  injured  the  lessor  is  not  liable."  In  a  case  under  the  Kansas 
Compensation  Act  an  injured  mine  employee  sought  to  hold 
liable  both  the  lessor  and  the  lessee  of  a  mine  as  partners;  it 
being  shown  that  the  lessor  retained  a  certain  supervisory  con- 
trol over  the  operations  of  the  lessee.  The  court  in  holding  the 
lessee  liable  as  an  independent  contractor  said:  "Whatever 
may  be  the  basis  of  the  liability  of  the  owner  in  certain  cases 
....whether  imputed  agency,  public  necessity,  or  other  ground, 
real  or  fictitious,  this  statute  attaches  no  liability  for  compensa- 
tion to  one  who  is  not  in  the  execution,  control  or  management 
of  the  work,  wherein  the  injury  occurs."65 

§  43.  Dual  Employers,  Employments,  and  Business  Enter- 
prises.— The  subject  of  dual  employers,  employments,  and  busi- 
ness enterprises  is  as  a  rule  not  covered  by  specific  provisions  in 
the  acts  and  the  few  decisions  relating  thereto  are  not  entirely 
in  accord. 

A  delivery  man  engaged  by  two  employers  to  deliver  packages, 
had  delivered  all  the  packages  belonging  to  A,  and  was  on  his 
way  to  deliver  a  package  belonging  to  B,  when  he  was  injured, 
and  it  was  held  that  B  alone  was  liable  for  compensation.88  So 
a  night  watchman,  who  has  contracts  of  hire  with  six  indepen- 
dent concerns  and  acts  as  watchman  for  all  of  them,  is  an  em- 
ployee of  each,  and  may  recover  from  the  one  on  whose  prem- 
ises he  is  injured.67  But  a  night  watchman  employed  to  patrol 
the  outside  of  the  premises  of  several  firms,  watching  for  fires 
and  other  unusual  occurrances,  is  employed  jointly  by  all  of 
said  firms,  and  they  are  all  liable  for  compensation  under  the 
California  Act.68  In  New  Jersey  it  has  been  held,  that  a  watch- 

64.  Puddy   v.    Ira    R.    Pitch,    Fourth   Annual   Report    (1915),    Wis. 
fnd.  Comm.  17. 

65.  Maughlelle  v.  J.  H.  Price  &  Sons   99  Kan.  412,  161  Pac.  907,  (1916). 

66.  Mitchell  v.  Alfred   Stahel  &  Sons,    (1916),  3  Cal.   Ind.  Ace.  Com. 
303. 

67.  Western   Metal   Supply  Co.   v.   Pillsbury,   172   Cal.   407,   156   Pac. 
491;    But  see  M.  Johnston  v.  Mountain  Commercial  Co.,  1  Cal.   I.  A.  C. 
Dec.  100;    Mason  v.  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284. 

68.  Frohn  v.  Bayle,  La  Coste  &  Co.,  3  Cal.  Ind.  Ace.  Com.  274. 

183 


§  43  WORKMEN'S  COMPENSATION  LAWS. 

man  employed  by  several  different  persons  to  watch  their  premises 
is  the  joint  employee  of  all  such  persons.69 

The  fact  that  a  policeman  employed  by  a  mining  company,  al- 
so happened  to  be  a  deputy  sheriff  and  received  fees  from  the 
county,  did  not  relieve  the  company  from  liability.70  A  janitor 
in  a  public  school,  who  also  did  work  for  other  people,  but  was 
injured  while  at  work  for  the  school,  was  allowed  to  recover 
compensation  from  the  municipal  corporation  employing  him.71 
The  fact  that  one  is  employed  in  a  dual  capacity  by  the  defend- 
ant and  another  does  not  make  him  any  the  less  an  employee  of 
the  defendant,  and  the  dependents  may  elect  which  of  the  em- 
ployers shall  be  proceeded  against,  under  the  California  Act.72  A 
number  of  firms,  individuals  and  corporations  were  compelled  by 
law  to  repair  a  dam  on  a  stream,  the  water  power  rights  being 
owned  by  them  jointly.  By  a  decree  of  court  three  referees  were 
appointed  to  carry  out  the  work  to  be  done.  It  was  held  that 
the  referees  were  the  agents  of  the  various  owners  and  that  all 
were  liable  jointly  for  compensation  by  reason  of  the  accidental 
death  of  a  workman  employed  by  the  referees,  and  that  the 
amount  payable  by  each  one  of  the  employers  was  proportionate  to 
the  amount  of  his  water  right  in  the  stream  where  the  dam  was  to 
be  built.73 

A  partnership  was  engaged  to  do  the  glazing  on  a  building, 
and  as  such  the  members  were  independent  contractors.  One  of 
the  partners  looked  after  the  delivery  of  the  glass  and  was  paid 
by  the  general  contractor  for  this  work.  He  was  held  to  be  the 
employee  of  the  general  contractor  while  performing  this  work.74 

Where  a  corporation  conducted  a  retail  store  and  a  warehouse, 
in  which  a  freight  elevator  was  operated,  and  therefore  came 

69.  Curran  v.   Newark  Gear    Cutting   Machine   Co.,    37  N.   J.    Law 
J.    21. 

70.  James  v.   Witherbee,  Sherman  &   Co.,  2  N.  Y.  St.  Dep.  Rep.  483. 

71.  Penfield  v.  Town  of  Glastonbury,  1  Comm.  Cornp.  Dec.  637. 

72.  Johnston   v.   Mountain     Commercial     Co.,    1     Cal.  Ind.  Ace.  Com. 
100. 

73.  Sayres  v.  Ogdenbury  Power  &  Light  Co.,  8   N.  Y.   St.   Dep.    Rep. 
393. 

74.  Dyer  v.  James  Black  Masonry  &  Contracting  Co.,  192  Mich.  400, 
158  N.   W.   959,  15   N.   C.  C.   A.  499. 

184 


WHO  COMES  UNDER  THE  ACT.  §   43 

within  the  hazardous  industry  classification  of  the  Illinois  Act, 
but  also  conducted  a  farm  near  the  city,  it  was  held  that  one  of 
its  farm  employees  injured  in  the  course  of  his  employment  by 
the  kick  of  a  horse,  was  not  entitled  to  compensation  under  the 
Act,  since  the  particular  employment  in  which  he  was  engaged 
at  the  time  of  the  injury  was  not  declared  by  the  act  to  be  extra 
hazardous." 

The  Illinois  Commission  has  no  authority  to  award  compensa- 
tion in  the  case  of  a  city  employee  accidentally  killed  in  a  non 
hazardous  employment  even  though  the  city  may  also  be  engaged 
in  hazardous  employments.76 

A  repair  shop  operated  by  a  department  store  company  for 
the  repair  of  vehicles  in  which  machinery  is  used,  power-driven 
machinery  employed,  and  manual  labor  exercised,  and  over 
which  the  company  has  control  or  right  of  access,  is  an  extrahaz- 
ardous  business,  though  merely  incidental  to  the  company's 
principal  business,  and  a  carpenter  employed  in  such  shop  is  en- 
gaged in  extrahazardous  employment  within  the  provisions  of 
the  Washington  Workmen's  Compensation  Act.77 

In  a  California  case  the  commission  found  that  the  employee 
was  injured  by  accident  while  in  employment  as  a  janitor  of  a 
dancing  hall  and  house  and  garden  laborer.  His  injury  actually 
occurred  while  pruning  a  fig  tree.  The  court  on  appeal  said: 
"Ohlsson  was  thus  employed  for  the  performance  of  services  in 
two  capacities :  One  that  of  a  janitor,  falling  within  the  terms  of 
the  act;  the  other  as  a  house  and  garden  laborer;  employees  en- 
gaged therein  being  excluded  from  its  operation.  Hence,  if  the 
injury  sustained  by  Ohlsson  was  due  to  an  accident  while  he  was 
engaged  in  labor  as  and  under  his  employment  as  a  gardner,  he 
would  not  be  entitled  to  the  benefits  of  the  act,  unless  the  service 
was  incidental  to  the  work  of  janitor.  The  pruning  of  this  fig 

75.  Vaughn's   Seed  Store    v.  SimoninI,   275  111.    477,  114  N.    E.  168, 
14    N.   C.  C.   A.   1075. 

76.  Marshall    v.  City  of  Pekin,  276  111.   187.  114  N.   E.  497,  14   N.   C. 
C.  A.    946. 

77.  Wendt  v.  Industrial  Ins.  Commission    of  Washington,    80  Wash. 
Ill,  5  N.  C.  C.  A.  790,  141  Pac.  311    (1914);    State  v.  Business  Prop- 
erty Security  Co.,  87  Wash.  627,  152  Pac.  334,  11  N.  C.  C.  A.  323. 

185 


§  43  WORKMEN'S  COMPENSATION  LAWS. 

tree  without  specific  instructions  so  to  do  might  well  be  regarded 
as  within  the  scope  of  his  employment  as  gardner,  since  the 
proper  care  thereof  required  such  work  to  be  done.  It  did  not, 
however,  interfere  with  the  use  of  the  driveway,  and  the  pruning 
thereof  had  no  connection  with  the  work  of  janitor  which  by 
any  stretch  of  the  imagination  could  render  it  incidental  there- 
to. Therefore  the  conclusion  of  law  as  found  by  the  commission 
that  at  the  time  of  the  injury  'the  applicant  employee  was  not 
engaged  in  any  of  the  occupations  or  employments  excepted  by 
section  14  of  the  Workmen's  Compensation,  Insurance  and  Safe- 
ty Act  from  the  provisions  of  the  said  act,  is  without  support  in 
the  facts  found.  Southern  Pac.  Co.  v.  Pillsbury,  170  Cal.  782,  151 
Pac.  277.  The  New  York  Compensation  Act  does  not  apply  to  all 
employees,  but  to  those  only  engaged  in  certain  occupations  there 
designated  as  extrahazardous,  while  the  California  act  applies 
to  all  except  those  designated  as  being  excluded  when  engaged 
in  certain  work.  This  being  true,  the  decisions  of  the  New  York 
courts  in  like  cases  furnish  a  rule  which  we  think  should  be 
followed  in  the  case  at  bar."  The  court  then  cited  the  case  of 
Gleisner  v.  Gross  &  Herbener,  170  N.  Y.  App.  Div.  37,  155  N.  Y. 
Supp.  946  (1915),  in  which  the  court  said:  "Where  the  em- 
ployee's ordinary  duties  and  accustomed  scope  of  activities  do 
not  come  exclusively  or  predominantly  within  the  category  of 
enumerated  employments,  and  only  casually  and  incidentally 
does  he  do  work  fairly  falling  within  that  category,  his  right  to 
remuneration  must  hinge  on  a  finding  that  he  sustained  injury 
while  actually  and  momentarily  doing  work  named  in  the  statute. 
If  the  employer  shows  that  the  employee  was  not  so  engaged 
when  he  met  with  injury,  he  is  not  entitled  to  reimbursement 
under  the  statute,  even  though  he  at  times  did  work  embraced 
within  the  statute."  Also  the  case  of  Sickles  v.  Ballston  R.  S. 
Co.,  171  N.  Y.  App.  Div.  108,  156  N.  Y.  Supp.  864,  where  the 
claimant  was  employed  as  purchasing  and  sales  agent  by  the  de- 
fendant engaged  in  the  business  of  storing  and  handling  fruits, 
claimant  being  injured  while  buying  fruit.  The  court  said :  ' '  The 
purchasing  of  goods  and  acquiring  ownership  thereto  is  not  an 
incident  to  the  business  of  conducting  a  storage  house.  The 
statute  should  be  given  a  liberal  interpretation,  but  liberality 
186 


WHO  COMES  UNDER  THE   ACT.  §   44 

should  not  be  stretched  into  extravagance,  and  it  seems  to  me 
that  it  would  be  highly  unreasonable  to  hold  that  this  claimant 
was  injured  in  a  hazardous  employment  as  described  and  de- 
fined by  the  statute.  It  certainly  was  not  the  legislative  intent, 
in  using  the  word  'storage'  and  making  it  a  hazardous  employ- 
ment, to  include  therein  the  duties  of  a  purchasing  agent."  The 
court,  therefore,  held  that  the  injury  sustained  by  the  employee 
in  the  instant  case  arose  out  of  and  in  the  course  of  his  employ- 
ment, not  as  a  janitor,  but  while  engaged  in  garden  labor,  which 
labor  is  included  within  the  term  horticultural  labor,  in  doing  which 
he  was  not  entitled  to  the  benefit  of  the  act.78 

§  44.  Subrogation,  and  Third  Persons  as  Affected  by  the  Acts. 
— Most  of  the  American  Compensation  Acts  provide  that  the  in- 
jured employee  may  proceed  either  against  the  third  person 
whose  negligence  caused  the  injury  or  against  his  employer  for 
compensation.  But  he  cannot  recover  from  both.  As  a  rule  they 
also  provide  that  the  employer  who  has  paid  or  is  paying  com- 
pensation is  subrogated  to  the  rights  of  the  injured  employee 
against  the  negligent  third  person.  As  to  the  amount  that  may 
thus  be  recovered  from  the  third  person  the  acts  and  decisions 
differ. 

The  fact  that  compensation  acts  generally  provide  that  the  em- 
ployer must  pay  his  injured  employee  compensation  even  though 
a  third  person  was  alone  at  fault,  does  not  make  them  uncon- 
stitutional.79 Though  it  has  been  held  that  in  so  far  as  the  Cali- 
fornia act  attempts  to  authorize  an  award  against  a  third  person 
not  an  employer  it  is  contrary  to  the  California  constitution.80 

78.  Kramer  v.  Industrial  Ace.   Comm.    of    California,   31    Cal.   App. 
673,  161    Pac.  278    (1916).     For  additional   cases  on,    see  Casual  Em- 
ployments. 

79.  Stertz   v.   Industrial   Insurance    Commission,     (1916),    91    Wash. 
588,  158   Pac.  256;    Frlebel  v.  Chicago  City  Ry.    Co.    et  al..    280  111.  76. 
117  N.   E.    467,    16  N.  C.  C.    A.   390;     Johnson   v.  Choate,  284   111.  214, 
119    N.   E   972;     Peet    v.   Mills,   76   Wash.    437,    136    Pac.   685;     Hugh 
Murphy  Const.  Co.  v.   Serck,  —  Neb.  — ,    (1920),  177    N.   W.   747,  6   W. 
C.  L.  J.   194. 

80.  Perry    v.    Indus.  Ace.  Comm.,  — Cal.  — ,  181    Pac.    788,    4  W.  C. 
L.  J.  350. 

187 


§  44  WORKMEN'S  COMPENSATION  LAWS. 

It  has  been  held  under  the  British  Act  that  if  a  workman  sues 
a  third  person  at  common  law,  and  is  defeated,  he  can  ask  the 
same  court  to  assess  compensation.81  In  the  case  of  a  workman 
injured  on  the  premises  of  a  third  person  with  whom  he  had  an 
agreement  to  accept  full  wages  and  medical  service,  during  in- 
capacity, but  not  to  exceed  a  period  of  six  months,  it  was  held 
that  this  was  a  recovery  of  damages  which  precluded  the  work- 
man from  claiming  compensation  from  his  employer,  as  the  re- 
covery of  such  damages  need  not  necessarily  be  by  legal  pro- 
ceedings.82 So  where  an  employee  is  injured  by  reason  of  the 
negligence  of  a  third  persen  and  accepts  a  settlement  from  such 
third  person,  he  is  under  most  acts,  thereby  barred  from  making 
a  claim  for  compensation  ,83  It  has  been  held,  in  an  action  at  law 
by  a  widow  for  a  tort  against  a  third  party  for  damages  for  the 
death  of  her  husband,  in  which  she  did  not  join  or  subrogate  the 
employer,  that  this  constituted  an  election  of  remedies,  and  after 
judgment  in  such  action  is  rendered  against  her,  she  cannot 
thereafter  claim  compensation.84  Where  the  father  of  an  em- 
ployee, who  has  been  killed  by  reason  of  the  negligence  of  a 
third  party  commenced  an  action  at  law  against  such  third  party 
for  damages,  an  action  for  death  benefit  must  be  dismissed  even 
though  filed  before  the  termination  of  the  action  at  law.85  But  it 
has  been  held  that  the  bringing  of  an' action  by  an  injured  em- 
ployee against  the  insurance  carrier's  physicians,  for  damages 
for  malpractice  in  treating  the  injury  does  not  bar  the  right  of 
the  employee  to  claim  compensation.86  Where  an  injured  ser- 
vant received  an  award  of  compensation  and  began  suit  against 

81.  Potter  v.  John  Welch  &  Son,  7  B.  W.   C.  C.   738. 

82.  Page  v.  Burtwell,    1  B.  W.  C.  C.  267,  L.  R.  A.  1916A,   361,   note. 

83.  Cook  v.  Employer's  Liability  Assurance  Corp.,  1  Mass.  Ind.  Ace. 
Bd.  50;     Labuff  v.  Worcester    etc.,  Co.,  231     Mass.  170    120    N.  E.  381, 
2  W.  C.  L.   J.   903;     In  re  Cripp,   216   Mass.  586,  104  N.   E.  565. 

84.  Moore    v.    Imperial  Ice    Co.,  3  Cal.  Ind.    Ace.  Comm.,  353;    But 
see  matter  of  Woodward  v.  E.  W.  Conklin  &  Son,  171  App.  Div.  736,  157 
Supp.   948. 

85.  Newman  v.  Sturgis    Machine    Works,  3  Cal.  Ind.    App    Com.  256. 
86.    McGrath  v.  Hydrox  Chemical   Co.,    3    Cal.   Ind.  Ace.   Com.   343; 

Pawlack  v.  Hayes,  162  Wis.  503,  156  N.  W.  464,  11  N.  C.  C.  A.  752. 
188 


WHO  COMES  UNDER  THE  ACT.  §   44 

his  physician  for  malpractice,  it  was  held  that  the  assignment 
of  his  claim,  for  malpractice,  to  the  employer  did  not  necessarily 
carry  with  it  or  waive  further  claim  to  compensation.87 

The  provision  of  the  California  Act  for  subrogation  to  the 
rights  of  an  injured  employee,  will  not  be  enforced  in  Oregon, 
because  in  Oregon  a  tort  action  is  not  assignable.  Therefore  a 
claim  against  the  deceased's  employer,  a  California  corporation, 
deceased  being  a  resident  of  that  state,  will  not  preclude  the 
widow's  recovery  against  the  negligent  third  party  in  Oregon  on 
the  theory  that  the  employer  was  subrogated  to  her  rights,  and 
the  widow  may  sue  the  third  party  and  recover  full  compensa- 
tion.88 

It  has  been  held  that  where  the  driver  of  a  truck  was  injured 
by  coming  into  collision  with  a  street  car,  and  died  several  days 
later,  but  before  his  death  made  a  settlement  with  and  gave  a 
release  to  the  street  car  company,  this  did  not  preclude  the 
driver's  widow  from  claiming  compensation  for  his  death  from 
his  employer,  as  the  right  of  the  dependents  of  the  employee  to 
compensation  was  independent  of  his  rights  to  disability  benefits 
before  death;89  that  where  the  widow  of  a  deceased  workman 
sued  a  third  person  through  whose  negligence  the  workman  is 
alleged  to  have  been  killed,  this  did  not  bar  a  claim  of  a  depen- 
dent mother  for  compensation  against  the  employer.00  That  an 
injured  workman,  who  executed  a  release  to  a  third  party  whose 
negligence  caused  the  injury,  is  not  estopped  from  claiming  com- 
pensation from  his  employer  because  the  latter  did  not  consent 
to  the  release,  and  he  is  therefore  not  barred  from  asserting  his 

87.  Brown  v.  Fuller  Co.,  197  Mich.  1,  163  N.  W.  492. 

88.  Rorvlk  v.  Northern  Pac.   Lbr.  Co.,  —  Ore.  — ,   (1920),  190    Pao. 
331,  6  W.  C.   L.  J.  385;     Anderson   v.  Miller   Scrap   Iron  Co.  et  al.,  — 
Wis.  — ,  182   N.  W.  852. 

89.  In  re  Crlpp  v.  Aetna  Life  Ins.  Co.,  104  N.  E.  565,  216  Mass.  586: 
Williams  v.   Vauxhall  Colliery  Co.,  2KB.  433,   436;     Howell   v.  Brad- 
ford,   104    L.   T.  R.  N.  S.  433;    Milwaukee   Coke   &    Gas   Co.   v.   Indus. 
Com.,  160  Wis.  247,  151  N.  W.  45. 

90.  In  re  Cahill,  173    App.  Div.    418,  159    N.    Y.  Supp.    1080;     Mer- 
cer v.  Ott,   78   W.  Va.  629,  89  8.  E.  952;    Merril  v.  Marietta    Torpedo 
Co.,  —   W.  Va.  — ,  92  S.  E.  112,  14  N.  C.  C.  A.  913.  Contra,  see  Gray 
v.  North  British  Ry.  Co..  8  B.  W.  C.  C.  373. 

189 


§  44  WORKMEN'S  COMPENSATION  LAWS. 

claim  against  the  third  party;91  that  where  an  injury  is  caused 
by  the  negligence  of  a  third  person,  and  the  insurance  carrier  of 
the  employer  has  paid  compensation,  the  right  of  the  employee 
as  against  the  third  person  was  subrogated  to  the  insurance 
carrier  of  the  employer,  and  the  employee  then  has  no  right  of 
action  against  the  third  person.92 

It  is  held  in  Indiana  that  the  insurer  has  the  right  of  subroga- 
tion, where  the  policy  expressly  gives  it  "only  in  the  event  it 
has  paid  the  whole  liability  in  any  given  case,  and  not  an  at- 
tempt to  provide  for  subrogation  pro  tanto,"  citing  Knaffl  v. 
Knoxville,  133  Tenn.  655,  182  S.  W.  232,  Ann.  Gas.  1917  C,  1181.93 

And  where  the  state  fund  has  paid  compensation  to  the  in- 
jured servant  it  is  entitled  to  be  subrogated  pro  tanto  to  the  right 
of  the  servant  in  a  judgment  against  a  third  person  for  dam- 
ages.94 

It  has  been  held  that  a  settlement  with  a  third  person  is  a  bar 
to  compensation,  although  in  making  it  the  employee  expressly 
reserves  his  right  to  compensation;95  that  where  an  employee  is 
injured  by  reason  of  the  acts  of  a  third  person  and  executes  a 
release  to  the  third  person  for  consideration,  this  is  a  bar  to 
a  claim  for  compensation.96 

It  has  been  held  in  New  York  that  where  an  employee  does 
not  recover  as  much  in  a  common-law  action  against  a  third  per- 

91.  Woodward  v.  E.  W.  Conklin  &  Son,  171  App  Div.  736,  157 
Supp  948. 

.92.  Royal  Indemnity  Co.  v.  Platt  &  Washburn  Refining  Co.,  (1917), 
98  Misc.  631,  163  N.  Y.  Supp.  197;  Louis  Bossert  &  Sons  v.  Piel 
Bros.,  — N.  Y  --  (1920),  182  N.  Y.  S.  620,  6  W.  C.  L.  J.  372;  Mayor 
and  Council  of  Hagerstown  v.  Schreiner,  —  Md.  — ,  (1920),  109  Atl. 
464,  5  W.  C.  L.  J.  858;  Labuff  v.  Worcester  Counsel.  Ry's  Co.,  231  Mass. 
170,  120  N.  E.  381,  2  W.  C.  L.  J.  903. 

93.  Maryland   Casualty  Co.  v.  Cincinnati   C.  C.  St.  Louis  Ry.  Co.,  — 
Ind.  App.  — ,  124  N.  E.   774,   5  W.  C.  L.  J.  69. 

94.  Mayhugh  v.  Somerset  Telephone  Co.,    265    Pa.    496   (1920),    109 
Atl.  213,  5  W.  C.  L.  J.  891. 

95.  Mulligan  v.  Dick,  41  Scot.    L.    R.    77;     Murray  v.   North    British 
Ry.  Co.,  41  Scot.   L.   R.  383,  L.  R.  A.  1916A,  note  361. 

96.  G-illiland    v.    Kearns,   1    Conn.    Comp.   Dec.    277;     Silva   v.   Kop- 
perud,  2  Cal.  Ind.  Ace.  Com.  604;    Lantis   v.  City  of  Sacramento,  2  Cal. 
Ind.  Ace.  Com.  663. 

190 


WHO  COMES  UNDER  THE  ACT.  §   45 

son  as  lie  would  be  awarded  by  way  of  compensation  under  the 
act,  that  is  not  such  an  election  as  discharges  his  employer  and 
insurer.97 

Where  an  injured  employee  was  taken  to  the  hospital,  used  by 
the  employer  for  that  purpose,  it  was  held  that  that  did  not  con- 
stitute an  election  to  take  compensation  under  the  act  and  there- 
by release  the  negligent  third  party,  unless  it  could  be  clearly 
shown  that  the  injured  employee  so  intended.98 

§  45.  Subrogation  and  Third  Persons  as  Affected  by  the  Acts. 
—It  has  been  held,  and  is  frequently  so  provided  in  the  acts,  that 
where  the  employer  or  his  insurer  is  liable  and  pays  compensation 
to  an  injured  employee  the  legislature  may  require  the  negligent 
third  party,  who  caused  the  injury,  to  reimburse  them  for  the 
amounts  so  expended.99 

A  negligent  third  party,  whose  conduct  has  resulted  in  the  ac- 
cidental injury  of  the  employee  of  another,  profits  materially  by 
virtue  of  such  provision,  in  that  when  the  employee  elects  to 
claim  compensation  from  his  employer  the  third  party  is  liable 
only  for  the  amount  of  compensation  paid  by  the  employer,  to- 
gether with  the  expense  of  suit  and  attorney's  fees,  should  suit 
be  necessary  to  establish  the  third  party's  negligence. 

It  has  been  held  under  the  Massachusetts  Act  that  a  dependent 
can  proceed  either  against  the  employer  or  the  third  person 
whose  negligence  caused  the  death  of  the  employee,  but  not 

97.  Matter    of    Woodward  v.  E.  W.  Conklin  &   Son,   Inc.,   171  App. 
Dlv.  736,  157    Supp.  984. 

98.  Wahlberg   v.    Bowen  et  al.,  229  Mass.  335,  118  N.  E.  645,  1  W. 
C.  L.  J.  790;    Horloff  v.  Merwin,    -  -    Wls.  — ,    (1920),  177  N.    W.  913, 
6   W.   C.  L.  J.  416. 

99.  Grand  Rapids    Lumber  Co.    v.    Blair.  190   Mich.   518.    157  N.    W. 
29.   16   N.    C.    C.   A.   409;     Vereeke   v.   Grand    Rapids.   203    Mich.     85, 
168   N.  W.  1019,     2   W.  C.  L.  J.  917;    Labuff   v.  Worcester    Consol.     St. 
Ry.  Co..  231  Mass.  170,  120  N.  E.  381,  2  W.  C.  L.  J.  903;    Davis  v.  Cent 
Vermont  Ry.  Co.,  —  Vt  — ,  (1921),   113  All.   539:    But  see  Keerans  v. 
Peoria  etc.  Traction  Co.,  277  111.  413,  113  N.  E.  636.  where  it  was  beld 
that  the   Act   does    not     affect   third    persons   in   this    respect,    where 
they  are   not  under   it. 

191 


§  45  WORKMEN'S  COMPENSATION  LAWS. 

against  both;1  that  where  an  employee  accepts  compensation  he 
is  precluded  from  bringing  an  action  against  a  third  person, 
whose  negligence  caused  the  injury,  because  the  right  to  proceed 
against  such  third  person  is  subrogated  to  the  employer  or  his 
insurer  ;2  that  an  insurer  may  prosecute  an  action  in  the  name  of 
the  widow  and  administrator  of  a  deceased  employee  for  its  own 
benefit;3  that  an  option  to  accept  compensation  under  the  Act 
instead  of  damages,  exercised  on  behalf  of  an  infant  will  be  set 
aside,  if  it  be  not  for  the  infant's  benefit.4  But  it  has  been  held 
in  New  York  that  the  widow  may  elect  for  a  minor  child,  the 
election  being  binding.5 

It  has  been  held,  under  the  Nebraska  Act,  that  the  fact  that  an 
employer  was  insured  against  loss  occasioned  by  compensation 
to  an  injured  workman,  does  not  bar  the  employer's  right  to  sub- 
rogation against  a  third  person;6  that  an  employer  might  as- 
sign his  right  to  the  employee  and  enable  the  employee  to  sue 
the  third  party;7  that  where  a  city  paid  compensation  to  its  ser- 
vant's widow'  for  his  wrongful  death,  as  provided  in  the  Wis- 
consin Act,  her  cause  of  action  against  the  tortfeasor,  who  caused 

1.  Barry  v.   Bay  State    St.  Ry.    Co.,  220  Mass.  366,    110  N.   E.  1031; 
Woodcock  v.  London  &    Northwestern    Ry.,   6   B.   W.  C.   C.   471;      Ma- 
Bomed     v.    Mounsell    1    B.  W.  C.  C.  269;    Labuff    v.    Worcester    Consol. 
Ry.  Co..,  231    Mass.  170,    120    N.  E.  381,    2  W.    C.  L.  J.  903;     Anderson 
v.    Miller    Scrap  Iron  Co.,  — Wis.— ,  182   N.  W.   852. 

2.  Hall  v.   Henry   Thayer    &   Co.,    225    Mass.    151,   113     N.    E.    644; 
Royal    Indemnity    Co.,  v.    Platt  etc.    Refin.  Co.,    98  Misc.    Rep.  631,    163 
N.  Y.  Supp.  197;  Turnquist  v.  Hannon,  219  Mass.  560,  107  N.  E.    443.  14 
N.  C.  C.  A.  1015;   Muncaster  v.  Graham  Ice  Cream    Co.,  —  Neb.  — ,  172 
N.  W.  52;  Dallas  Hotel  Co.  v.  Fox,  —  Tex.  Civ.  App.  — ,  196  S.  W.  647; 
Contra,  Houlihan  v.  Sulzberger  &  Sons  Co.,  282  111.  76,  118  N.  E.  429, 

1  W.  C.  L,  J.  536;  City  of  Aust'n  v.  Johnston,  —  Tex.  — ,  204  S.  W.  1181. 

2  W.  C.   L.  J.  845;  Merrill   v.  Marietta   Torpedo   Co.,  79  W.   Va.  669,   92 
S.  E.  112. 

3.  Hall  v.  Thayer  &  Co.,  225  Mass.  151,  113  N.  E.  644. 

4.  Ford  v.  Wren  &  Dunham,  5  W.  C.  C.  48;     Stephens  v.  Dudbridge 
Iron  Works  Co.,  6  W.  C.   C.  48. 

5.  Hanke  v.  New    York    Consol.   Ry.    Co.,   168  N.    Y.   S.    234,  16  N. 
C.  C.  A.  399. 

6.  Otis  Elevator  Co.  v.  Miller,  153  C.  C.  A.  302,  240  Fed.  376. 

7.  Thomas   v.   Otis   Elevator   Co.,   103   Nebr.     401,    172   N.   W.   53,   4 
W.   C.  L.   J.  114. 

192 


WHO  COMES  UNDER  THE  ACT.  §   45 

his  death,  became  the  property  of  the  city  with  which  it  might 
deal  as  it  chose;8  that  under  the  Texas  Act,  prior  to  1917,  the 
insurance  carrier  that  had  paid  compensation,  was  not  subro- 
gated  to  the  rights  of  employees  against  a  third  person,  whose 
negligence  alone  caused  the  injury.9 

But  now  the  insurer's  right  to  subrogation  is  established  more 
in  accord  with  the  law  in  many  other  states,  the  insurance  car- 
rier or  employer  has  the  right  of  subrogation  limited  to  the 
amount  paid,  and  where  the  employee  proceeds  against  the  third 
party,  the  employer  or  insurance  carrier  should  be  made  a  party 
to  the  suit.  The  fact  that  the  employee  has  received  compensa- 
tion does  not  bar  the  action  against  the  third  party.10  But  in 
Iowa  where  the  employee  has  first  recovered  from  the  third  party 
and  afterwards  receives  compensation  from  the  employer,  the 
employer  has  no  right  of  action  or  subrogation  against  the  third 
party.11  Contra  to  the  Towa  holding  on  the  above  point  is  the 
holding  in  Connecticut,  New  York,  and  California.  In  a  Con- 
necticut case  an  employee  accepted  a  sum  in  excess  of  the 
amount  allowed  by  compensation  and  released  the  third  party 
before  adjusting  his  compensation  claim.  It  was  held  that  the 

8.  Saudek  v.   Milwaukee  Elect  R.   etc.  Co.,  163  Wis.  109,  157  N.  W. 
579;     Marshall  Jackson   Co.    v.   Jeffery,    167    Wls.  63,    166  N.  W.   647. 
1  W.  C.  L.  J.  892. 

9.  Austin   v.  Johnson,  —  Civ.   App.  — ,    204    S.  W.  1181.  2   W.  C.  L. 
J.  845;   Aetna  Life  Ins.  Co.  v.  Otis  Elevator  Co..  —  Tex.  Civ.  App.  — ,  204 
S.  W.    376,    2   W.   C.   L.   J.   592;     Texas   etc.   R.   Co.     v.    Archer     (Civ. 
App.)  203  S.  W.  796,  2  W.  C.  L.  J.  391. 

10.  The    Emilia   De    Perez,     248    Fed.    480,    2    W.  C.  L.  J.  11;    Lan- 
caster v.  Hunter,  —  Tex.  Civ.  App.  — ,  217  S.  W.  765,  5  W.  C.  L.  J.  612, 
Black  v.   Chicago  Great    Western    R.    Co.,  —Iowa — ,  174    N.  W.    774. 

5  W.  C.  L.  J.  218;  Wm.  Cameron  &  Co.  v.  Gamble,  —  Tex.  Civ.  App.  — , 
216  S.  W.  459,  5  W.  C.   L.  J.    312;    Fidelity  &  Casualty    Co.  v.    Cedar 
Valley  Electric  Co.,   -  -   Iowa  — ,  174    N.  W.    709,  5  W.  C.    L.  J.    228: 
City  of  Shreveport  v.  Southwestern  Gas  &    Electric  Co.,    145  La.  680. 
82  So.   785,  4   W.  C.  L.   J.   605;    Moreno  v.  Los  Angeles   Transfer  Co.. 
—  Cal.  — ,  186  Pac.  800,  5  W.  C.  L.  J.  489:  Stackpole  v.   Pacific  Gas  & 
Elect.  Co.,  —  Cal.  — ,  186  Pac.  354,  5  W.  C.  L.  J.  461;  Western  States  Gat? 

6  Electric  Co.  v.  Bayside  Lumber  Co.,  187  Pac.  735,  5  W.  C.  L.  J.  649. 

11.  Southern  Surety  Co.  v.  Chicago,  St.  P.  M.  &  O.  Ry.  Co.,  —  Iowa  — . 
174  N.  W.  329,  4  W    C.  L.  J.  710. 

193 
W    C— 13 


§  45  WORKMEN'S  COMPENSATION  LAW 

money  so  paid  should  be  applied  to  the  obligation  of  the  em- 
ployer to  ra.v  compensation.12  And  in  New  York,  the  law  being 
that  the  claimant  for  compensation  must  assign  his  right  against 
third  parties,  for  the  benefit  of  the  state  insurance  fund,  or  the 
person  or  corporation  liable  for  compensation,  where  a  claimant 
was  assaulted  and  the  wrong  doers  were  required  under  court 
decree  to  pay  the  claimant  some  money  in  order  to  suspend  their 
sentence  for  assault,  it  was  held  that  the  employer  was  entitled 
to  credit  for  the  amounts  so  paid.13 

"Where  the  dependent  mother  elected  to  receive  compensation 
and  the  employer  never  prosecuted  its  right  to  subrogation 
against  the  third  party,  the  employer  cannot  have  the  compen- 
sation claim  reduced  by  the  amount  received  by  the  mother  from 
the  administrator  of  the  deceased's  estate,  the  administrator  hav- 
ing recovered  from  the  third  party  under  the  Survival  Act  for 
negligent  killing.  Had  the  employer  pfosecuted  his  claim 
against  the  third  party  and  recovered,  the  amount  so  recovered 
would  then  have  been  considered  in  the  administrator's  action 
against  the  third  party.34 

It  has  been  held  in  Michigan  that  the  personal  representa- 
tive of  a  deceased  employee,  by  making  settlement  with  the 
negligent  third  party,  does  not  thereby  release  the  deceased's 
employer  from  liability  to  pay  compensation,  nor  affect  the 
right  of  the  employer  to  proceed  against  such  third  party 
which  he  may  do  as  if  no  settlement  had  been  made.15 

The  wording  of  the  California  Act  vests  the  right  of  subro- 
gation in  the  employer  and  consequently  the  holding  in  California 
is  contrary  to  the  Iowa  case  last  above  mentioned.  The  court  said 
in  a  recent  case:  "The  interest  of  the  employer  in  the  causo  of  ac- 
tion which  the  injured  employer  has  against  the  third  party,  whose 
negligent  act  caused  the  injury,  is  in  the  nature  of  a  lien 

12.  Rosenbaum  v.   Hartford  News   Co.,  92  Conn.   398,   103  Atl.  120,  1 
W.   C.  L.  J.  930. 

13.  Dietz  v.  Solomonwitz,  179  App.  Div.  560,  166  N.  Y.  S.  849,  16  N.  C. 
C.  A.  414. 

14  Vereeke  v.  City  of  Grand  Rapids,  203  Mich.  85,  168  N.  W.  1019,  li 
W.  C.  L.  J.  917. 

15.    Naert  v.  Western  Union  Tel.  Co.,  —  Mich.  — ,  172  N.  W.  606. 
194 


WHO  COMES  UNDER  THE  ACT.  §   45 

thereon  which  he  can  enforce  by  action  in  his  own  name  and 
which  right  cannot  be  impaired  or  destroyed  by  any  act  of  the 
injured  employee  not  concurred  in  by  the  employer.18 

In  California  an  insurance  carrier  and  the  injured  employee 
may  join  in  an  action  against  the  negligent  third  party,  with 
out  an  award  of  compensation  having  been  made,  because  li- 
ability to  pay  compensation  is  created  by  the  act,  and  not  by  th« 
award.17 

Under  the  Kentucky  Act  an  employee  injured  by  the  negli- 
gence of  a  third  party  may,  after  receiving  compensation  from 
the  employer,  join  his  employer  in  a  suit  to  recover  against  thv« 
negligent  third  party,  his  employer  being  entitled  to  receive  the 
amount  of  compensation  paid  to  the  employee  from  UMJ 
amount  recovered  from  the  third  party.18 

Under  the  Michigan  Act,  providing  for  recovery  by  the  em- 
ployer or  insurer  from  a  third  party  tort-feasor,  payment  of 
compensation  either  by  agreement  or  by  order  of  the  Industrial 
Accident  Board,  is  prima  facie  evidence  of  the  tort-feasor's 
liability.19  It  has  been  held  that  where  a  city  paid  a  foreman 
full  wages  while  disabled  through  the  negligence  of  a  third 
person,  this  did  not  operate  as  an  assignment  of  his  right  ofl 
action  to  the  city  under  the  Wisconsion  Act,  because  a  foreman 
is  not  covered  by  it;20  that  the  negligent  third  party  cannot  be 
sued  by  the  employer's  insurance  company  when  he  has  already 
been  sued  by  the  employee's  widow  for  the  same  act;21  that  an 
employee's  assignment  of  his  cause  of  action,  against  a  thinl 
party  vested  title  thereto  in  the  employer  who  could  not  *** 
divested  thereof,  against  bin  consent,  by  either  the  employee  or 

16.  Papineau  v.  ind.  Ace.  Comm.,  —  Cal.  — ,  187  Pac.  108,  5  W.  C.  L.  J. 
492;  Mass.  Bonding  &   Ins.  Co.  v.  San  Francisco-Oakland  Terminal  Ry., 
39  Cal.  App.  388,  178  Pac.  974,  3  W.  C   L.  J.  574. 

17.  Moreno  .v.  Los  Angeles  Transfer  Co.,  —  Cal.  App.  — ,  186  Pac.  SOO. 

18.  Book  v.    City  of    Henderson,    -  -  Ky.    App.  — ,   197  S.   W.   499, 
A   1  W.  C.   L.  J.  678. 

19.  Grand  Rapids  Lumber  Co.  v.  Blair,  190  Mich.  518,  157  N.  W.  29; 
But  see  Brabon  v.  Gladwin  Light  etc.  Co.,  201  Mich.  697.  167  N.  XV.  1024, 
2  W.  C.  L.  J.  302. 

20.  Hornburg  v.  Morris,  163   Wis.  31,  157   N.  XV.  556. 

21.  Dettliff  v.  Hammond,  etc.  Co.,  195  Mich.  117,  161  N.  W.  949. 

195 


§  45  WORKMEN'S  COMPENSATION  LAWS. 

the  commission;22  that  where  the  dependents  elected  to  claim 
under  the  act,  and  the  cause  of  action  against  the  third  person 
was  assigned  to  the  insurance  carrier  of  the  employer,  tl»e 
carrier  could  maintain  the  action  against  the  third  person;23  that 
the  question  of  the  third  parties  negligence  was  for  the  jury 
to  decide;24  that  though  the  employer's  negligence  concurred 
with  that  of  a  third  person  that  does  not  bar  the  employer's 
right  to  subrogation  against  such  third  person;25  that  under 
the  Michigan  Act,  an  employer,  having  made  a  payment  to  an 
injured  employee,  may  recover  against  a  third  person  guiltv 
of  negligence  regardless  of  whether  the  payment  is  in  full  or 
only  partial;26  than  an  employee,  by  accepting  compensation 
under  the  New  York  Act,  subro  gates  to  his  employer  any  cause 
of  action  he  might  have  against  a  third  person  for  negligently 
causing  the  employee's  injury,21  and  the  employer  or  his  in- 
surer who  is  compelled  to  pay  compensation  to  an  employee  in- 
jured by  reason  of  the  negligence  of  a  third  person  is  not  limit- 
ed in  the  recovery  against  the  third  person  to  the  actual  com- 
pensation liability  or  payment,28  though  any  excess  recovery 

22.  Sabatino  v.  Crimmins  Const.  Co.,  102  Misc.  Rep.  172,  168  N.  Y.  S. 
495,  1  W.  C.  L.  J.  709. 

23.  Traveler's  Ins.  Co.  v.  Padula  Co.,  224  N.  Y.  397,  121  N.  E.  348,  3 
W.  C.  L.  J.   339. 

24.  Royal  Indemnity  Co.   v.  Platt  etc.   Refln.  Co.,   98'  Misc.    Rep.  631, 
163  N.  Y.  S.  197. 

25.  Otis  Elevator  Co.  v.   Miller,  153  C.  C.  A.  302,  240  Fed.  376.    Held 
otherwise  where  the  employer's  other  employees   as   well  as  the  negli- 
gence of  the  third  person  contributed  to  the  injury.   Cory  v.  France  F.  & 
Co.,  1  K.  B.  114    (Eng.)    L.  R.  A.   1916A  (note)   362. 

26.  Albrecht  v.  Whitehead  etc.  Iron  Works,  200  Mich.  108,  166  N.  W. 
855,  1  W.  C.  L.  J.  1013;  Also  N.  Y.  see  Casualty  Co,  of  America  v.  A.  C. 
Sweet  Elect.  Light  &  Power  Co.,  174  N.  Y.  App.  Div.  825,  162  N.  Y.  S.  107; 
Henderson  T.  &  T.  Co.  v.  Owensboro  H.  T.  &  J.  Co.,  —  Ky.  — ,  233  S.  W. 
743. 

27.  Miller  v.  New  York  Railway  Co.,  171  App.  Div.  316,  157  Supp.  200; 
Royal  Indemnity  Co.  v.  Platt  etc.  Refin.  Co.,  98  Misc.  Rep.  631,  163  N.  Y. 
S.  197;    United  States  Fidelity  &  Guaranty  Co.,  v.   New  York  Rys.  Co., 
93   N.   Y.  Misc.  118,  156  N.  Y.  S.  615,  14  N.  C.    C.  A.  1018. 

28.  Casualty  Co.  v.  Swett  Elect  Co.,  174   App.   Div.  825,  162  N.  Y.  S. 
107;  Otis  Elevator  Co.  v.  Miller  (Nebr.)  153  C.  C.  A.  302,  240  Fed.  376: 
See  also  U.  S.  Fidelity  &  Guaranty  Co.  v.  N..Y.  Railways  Co.,  156  N.  Y. 
S.   615,  93  Misc.  Rep.  118. 

196 


WHO  COMEb  UNDER  THE  ACT.  §   45 

should  be  paid  to  the  injured  employee.29  Where  the  employee 
in  an  action  against  the  negligent  third  party,  recovers  an 
amount  greater  than  that  allowed  under  the  compensation  act, 
the  employer  has  no  right  of  action  against  such  third  party.80 

Tn  Illinois,  when  the  third  party  is  not  under  the  act,  the  em- 
ployer or  employee  may  bring  the  action  against  the  third 
party.  The  employer  being  subrogated  to  the  amount  he  had 
paid  or  is  bound  to  pay,  and  all  in  excess  recovered  is  paid  to 
the  employee.  Where  the  employee  brings  the  action  he  may 
prosecute  the  claim  for  compensation  at  the  same  time.81  But 
where  the  third  party  is  also  under  the  act  and  the  injury  arose 
out  of  and  in  the  course  of  the  employment,  the  employee  is 
limited  to  his  compensation,  and  the  employer  is  subrogated  to 
the  right  of  the  employee,  the  recovery  being  limited  to  the  amount 
payable  under  the  act.82 

Where  the  third  party  is  under  the  act  but  the  injury  did 
not  arise  in  the  course  of  the  employment,  an  action  will  lie 
and  the  amount  of  recovery  is  not  limited  to  the  compensation 
rate.88  In  Minnesota  the  employer's  right  of  recovery  against 
the  third  party,  where  he  has  been  subrogated  by  the  employee's 
election  to  accept  compensation,  depends  upon  whether  the 
proximate  cause  of  the  injury  was  the  negligent  act  of  the 
third  party.34  In  Minnesota  the  employer  is  subrogated  to  the 

29.  Western  Gas  &  Elect.  Co.  v.  Bayside  Lbr.  Co.,  —  Cal.  — ,  (1920). 
187  Pac.  735,  5  W.  C.  L.  J.  649;    Stockpole  v.  Pac.  Gas.  &   Elect  Co.,  - 
Cal.  — ,  186  Pac.  354;    See  S.  Dak.  Act,  1921,  Amendment,  §  9446. 

30.  Louis  Bossert  &  Sons  v.  Piel  Bros.,  —  N.  Y.  — ,  (1920),  182  N.  Y.  S. 
620;    6  W.  C.  L.  J.  372. 

31.  Houlihan   v.    Sulzberger,  282  111.  76,  118  N.  E.  429,   1  W.  C.  L.  J. 
536;    Gones  v.  Fisher,  286  111.  606,  122  N.  E.  95,  3  W.  C.  L.  J.  596. 

32.  Frlebel  v.  Chicago  City  Ry.  Co.,  280  111.  76,  117  N.  E.  467,  1  W.  C. 
L.  J.  18;    Keeran  v.  Peoria.  Bloominglon,   Champaign,  Traction  Co.,  277 
111.  413,  115  N.  E.  636,  16  N.  C.  C.  A.  406;  Mahowald  v.  Thompson  Starrett, 
134  Minn.  113,  158  N.  W.  913,  14  N.  C.  C.  A.  904;  Vose  v.  Central  Illinois 
Pub.  Serv.  Co.,  286  111.  519. 

33.  Hade  v.  Simmons,  132  Minn.  344,  157   N.   W.  507,  14  N.  C.  C.   A. 
907;   Otto  v.  Duluth  St.  Ry.  Co.,  138  Minn.  312,  164  N.  W.  1020,  16  N.  C. 
C.  A.  402;  Podgorski  v.  Kerwin,  144  Minn.  313,  175  N.  W.  694,  5  W.  C. 
L.  J.  544. 

34.  Carlson  v.  Minneapolis  St.  Ry.   Co.,    143    Minn.   129,   173   N.  W. 
405.  4    W.   C.  L.  J.  513. 

197 


§  45  WORKMEN'S  COMPENSATION  LAW 

rights  of  the  employee  against  the  third  party  to  the  extent  of 
the  compensation  paid  by  the  employer.35 

Where  the  third  party  exercises  control  over  the  actions  of  the 
injured  employee  it  brings  him  under  the  provisions  of  the  act,  and 
the  right  to  sue  the  third  party  at  common  law  is  lost,  and  the 
employee  may  look  to  his  employer,  the  third  party  or  both  for  com- 
pensation under  the  Acts.36 

It  has  been  held  that  an  employee  who  is  injured  while  in 
the  service  of  a  corporation  cannot  sue  its  president  for  common 
law  damages,  as  his  only  remedy  is  his  claim  for  compensation 
under  the  statute,37  but  that  an  injured  employee  entitled  to 
compensation  might  sue  his  employer's  foreman,  as  a  'third  person' 
whose  negligence  caused  the  injury;38  that  a  negligent  third  per- 
son, who  has  accepted  the  Compensation  Act,  is  nevertheless 
subject  to  a  suit  at  common  law  for  damages  by  the  employee  of 
another  who  was  liable  for  compensation,  had  the  employee  elected 
to  accept  compensation.38 

"What  constitutes  an  election  to  accept  compensation  where  the 
employees  or  his  dependents  have  a  right  of  action  against  third 
parties  is  a  question  of  fact.  It  has  been  held  that  the  fact  that 
a  widow  accepted  some  compensation  from  the  employer  of  her 
deceased  husband,  not  having  made  a  claim  or  having  any  agree- 
ment approved  by  the  Board,  does  not  constitute  an  election,  and 
an  action  against  the  third  party  was  not  barred.40  In  a  somewhat 
similar  case  the  employer  and  employee  made  an  agreement  that 
the  money  paid  as  compensation  should  be  returned  in  the  event  of 
a  recovery  against  the  third  person.  It  was  held  that  the  action 

35.  Hansen  v.  Northwestern  Fuel  Co.,  —  Minn.  — ,  174  N.  W.  726. 

36.  Lee  v.  Cranford  Co.,  182  App.  Div.  191,  169,  N.  Y.  S.  370,  1  W.  C. 
L.  J.   854. 

37.  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  4  N.  C.  C.  A.  786;  Winter 
v.  Peter  Doelger  Brewing  Co.,  175  App.  Div.  796,  162  N.  Y.  S.  469,  14  N. 
C.  C.  A.  909;  Northern  Pacific  Ry.  Co.  v.  Meese,  239  U.  S.  614,  10  N.  C. 
C.     A.   939,  60  L.  Ed.  467. 

38.  Churchill  v.  Stephens,  91  N.  J.  L.  195,  102  Atl.  657,  1  W.  C.  L.  J. 
651. 

39.  Smale  v.  Wrought  Washer  Co.,  160  Wis.  331,  151  N.  W.  803. 

40.  Brabon  v.  Gladwin  Light  &  Power  Co.,  201  Mich.  697,  167  N.  W. 
1024;  2  W.  C.  L.  J.  302,  16  N.  C.  C.  A.  392. 

198 


WHO  COMES  UNDER  THE  ACT.  §   45 

against  the  third  party  was  not  precluded  by  the  receipt  of  com- 
pensation, as  the  employee  was  bound  to  return  it  in  the  event 
of  a  recovery,  and  hence  would  be  held  to  have  recovered  against 
only  one  of  the  parties.41 

Where  the  widow  of  a  deceased  employee  entered  into  an  agree- 
ment with  the  employer  whereby  she  was  to  proceed  against  the 
third  party,  and  the  agreement  provided  that  in  the  event  the 
recovery  against  the  third  party  was  not  equal  in  amount  to  the 
sum  she  was  entitled  to  under  the  compensation  law  tha  insurance 
carrier  of  the  employer  would  pay  such  difference,  and  it  was 
further  agreed  that  should  the  carrier  be  financially  unable  to 
meet  the  claim  the  employer  would  be  held  harmless,  the  court 
held  that  such  an  agreement  was  not  binding  and  so  did  not  consti- 
tute an  election  to  accept  compensation  and  the  action  against 
the  third  party  was  not  therefore  barred.42 

It  has  been  held  that  where  the  employer's  right  to  sue  the 
third  person  was  established,  the  employer  could  assign  it  to  an- 
other who  could  bring  the  action;43  that  third  person  may  set  up 
as  a  defense  the  fact  that  the  injured  employee  has  been  paid 
compensation  as  provided  under  the  Act;44  that  the  employee's 
failure  to  pay  his  hospital  bill  for  the  first  two  weeks,  when  not 
requested  so  to  do,  does  not  constitute  an  election  to  accept  com- 
pensation and  release  the  third  person.45 

Under  the  Kansas  Act  a  claimant  may  maintain  a  proceeding 
for  compensation  against  the  employer  and  also  an  action  against 
the  third  party,  but  can  recover  against  only  one.  As  stated  by 
the  court:  "The  statute  thus  gives  a  sort  of  dual  cause  of  action, 
for  compensation  and  for  damages,  but  qualifies  and  limits  tli.- 
recovery  to  the  one  or  the  other.  The  plaintiff  has  not  accepted 

41.  Mingo  v.  Rhode  Island  Co.,  41  R.  I.  423.  103  Atl.  965,  2  W.  C.  L.  J. 
562. 

42.  Dettloff  v.  Hammond,  Standish  ft  Co.,  195  Mich.  117,  161  X.  W.  949, 
14  N.  C.  C.  A.  901. 

43.  McGarvey  v.  Independent  Oil  ft  Grease  Co.,  156  Wig   580,  146  N. 
W.  895,  5  N.  C.  C.  A.  803;    Frankfort  Gen.  Ins.  Co.  v.  City  of  Milwaukee. 
164  Wis.  77,  159  N.  W.   581,   14  N.  C.  C.  A.    1014:   Saudek    v.  Milwaukee 
Elec.  Ry.  ft   Light  Co     163  Wis.  109.  157  N.  W.  579,  14  N.  C.  0.  A.  1021. 

44.  Miller  v.  N.  Y.  Railways  Co.  157  N.  Y.  S.  200   171  App.  Div    316. 

45.  Wahlberg  v.  Bo  wen    (Mass.),  118  N.  E.  645.  1  W.  C    L.  J.  792. 

199 


§  45  WORKMEN'S  COMPENSATION  LAWS. 

the  compensation  provided  for  her  and  her  children  under  the 
arbitration  proceedings,  and  she  has  done  nothing  to  estop  herself 
from  exercising  her  dual  action  conferred  by  the  statute.  The 
time  will  probably  come  in  the  course  of  the  present  lawsuit  when 
plantiff  must  elect  whether  she  will  accept  the  compensation  pro- 
vided for  her  or  accept  the  damages  which  she  may  recover  against 
Hoffman,  provided  she  successfully  maintains  her  cause  of  action 
against  him,  but  there  is  nothing  in  the  statute  which  says  or 
•  infers  that  she  need  choose  between  the  damages  and  the  compen- 
sation until  she  knows  definitely  which  is  the  more  to  her  ad- 
vantage. In  this  respect  the  Kansas  statute  differs  from  some 
other  state  laws.  English  and  Scotch  decisions  are  cited  by  de- 
fendants, but  upon  careful  examination  we  discern  nothing  therein 
which  detracts  from  the  views  herein  expressed.  See,  also,  Colum- 
bia Law  Review,  June  1918,  vol.  18,  No.  6,  p.  598. " 46 

But  under  the  Washington  Act  an  employee  has  only  his  right 
of  action  against  the  employer  and  cannot  maintain  an  action 
against  the  third  party  causing  the  injury  unless  the  injury 
caused  by  the  third  party  \vas  incurred  ''away  from  the  plant  of 
the  employer. ' ' 47 

The  claim  of  the  employee  against  a  negligent  third  party  on 
account  of  personal  injuries  has  been  held  to  be  assignable  to 
one  who  is  a  stranger  to  the  entire  matter.48  Assignment  by  the 
injured  employee  to  his  employer  of  so  much  of  his  claim  against 
the  third  party  as  will  indemnify  the  employer  for  compensation 
paid,  does  not  bar  the  employee's  right  of  action  against  such 
third  party.49 

A  widow  may  not  assign  her  right  of  action  for  the  death  of 
her  husband  under  the  Oregon  Employers'  Liability  Act.  But 

46.  Swader  v.  Kansas  Flour  Mills  Co.,  103  Kan.  378,  176  Pac.  143,  3 
W.  C.  L.  J.  129. 

47.  Zenor  v.  Spokane  &  I.  E.  R.  Co.,  109  Wash.  — ,  186  Pac.  849,  5  W. 
C.  L.  J.  634;  Madden  v.  Northern  Pac.  Ry.  Co.,  242   Fed.   981,   16  N.  C. 
C.  A.  407.     See  Utah  Act,  1921  Amendment,  §  3133. 

48.  Shreveport  v.   Southwestern  Gas   &  Elec.  Co.,  140   La.  — ,  74,  So. 
559;  Phoenix  Const.  Co.  v.  Witt  &  Saunders,  —  Tex.  Civ.  App.  — ,  190  S. 
W.  780. 

49.  Lancaster  v.  Hunter,  — Tex.,  Civ.  App. — ,  217  S.  W.  765. 
200 


WHO  COMES  UNDER  THE  ACT.  §   45 

where  she  accepts  compensation  from  the  employer,  her  right 
against  a  third  party  passes  to  the  employer  and  any  excess  re- 
covered by  him  under  such  right  against  a  third  party  must  be 
held  for  the  benefit  of  the  widow  as  the  right  of  action  is  :ndivi- 
sible  and  belongs  to  two  persons,  and  in  case  the  employer  re- 
fuses to  join  as  a  plaintiff  he  may  be  made  a  defendant.80 

The  bringing  of  an  action  by  the  widow  of  the  deceased,  his 
administratrix,  against  the  negligent  third  party  to  recover  dam- 
ages under  How.  Ann.  St.  Mich.  1912,  Par.  13702-3,  was  held  not 
to  amount  to  a  waiver  of  her  right  to  claim  compensation  from 
the  employer  under  the  workmen's  compensation  act,  despite  St. 
1919,  Par.  2394-25,  Subd.  2." 

Mere  negotiations  with  a  third  party  does  not  constitute  a 
claim  precluding  the  injured  party  from  claiming  compensation 
from  the  employer,  since  a  claim  under  the  statute  means  a  de- 
mand of  some  matter  of  right  made  by  one  person  upon  another 
to  do  or  to  forbear  to  do  some  act  or  thing  as  a  matter  of  duty.52 

It  has  been  held  in  Michigan  that  where  an  employee  may  pro- 
ceed against  either  his  employer  or  a  third  person  and  he  files 
suit  against  the  third  person  and  later  petitions  for  compensa- 
tion, the  action  at  law  will  abate.58 

Under  the  Federal  Act,  where  an  employee  proceeds  against  a 
third  party  and  recovers,  the  commission  is  entitled  to  have  the 
amount  recovered,  less  court  costs  and  reasonable  attorneys  fees, 
credited  against  the  award  under  the  act ;  and  the  employee  may 
recover  the  difference  from  the  commission.54 

Where  a  suit  against  a  third  party  would  be  futile,  compensa- 
tion will  be  allowed  under  the  Federal  Act.55 

60.    Rorvik  v.  N.  Pac.  Lbr.  Co.,  195  Pac.  163,  —  Ore.  — ,  (1921). 

51.    Miller  Scrap  Iron  Co.  v.  Indus.  Comm,  —  Wis.  — ,  180  N.  W.  826. 

62.  Town  of  Stcphenson  v.  Indus.  Comm.,  —  Wls.  — ,  (1921),  180  N.  W. 
842. 

58.  Barbon  v,  Glad  win  Light  ft  Power  Co.— Mich.— ,  167  N.  W.  1024, 
2  W.  C.  L.  J.  802. 

64.  In  re  Wm.  E.  Davis,  2nd  A.  R.  U.  S.  C.  C.  234;    In  re  Fay  P.  Les- 
lie, 2nd  A.  R.  U.  S.  C.  C.  235;    In  re  Solomon  Schubert.  2nd  A.  R.  U.  S. 
C.  C.  235;    In  re  Chas.  W.  Polnsett,  2nd  A.  R.  U.  S.  C.  C.  235. 

65.  In  re  Wm.  E.  Davis.  2nd  A.  R.  U.  S.  C.  C.  236;    In  re  L,  B.  Aahton, 

201 


§  46  WORKMEN'S  COMPENSATION  LAW 

Where  the  vice  president  of  a  corporation  causes  injury  to  an 
employee  of  the  corporation  such  vice  president  is  a  "person 
other  than  the  employer"  within  the  compensation  act  and 
therefore  the  employee  is  entitled  to  elect  against  whom  he  shall 
proceed.56 

It  is  held  under  the  Federal  Act  that  where  the  recovery 
against  a  third  party  is  more  than  the  amount  due  from  the  com- 
mission, the  excess  will  be  credited  to  the  commission  in  lieu  of 
any  future  claim  which  may  be  made  for  other  injuries  to  the 
claimant.57 

Damages  to  claimant's  watch  collected  from  a  third  party 
was  held  to  be  a  proper  credit  against  the  amount  due  from  the 
Federal  Commission.58 

Under  the  Louisiana  Act  the  employer  is  subrogated  to  all 
rights,  of  the  employee  against  a  third  party  causing  the  injury, 
and  a  claimed  right  of  subrogation  to  the  injured  employee  by 
the  third  party  upon  payment  of  the  claim  to  the  employee  will 
not  avail  the  third  party  anything.59 

A  third  party  causing  injury  to  an  employee  cannot  affect  the 
employer's  right  of  subrogation  to  the  extent  of  the  compensa- 
tion awarded,  by  settling  with  the  employee  without  the  em- 
ployer's consent.60 

§  46.  Cases  Exclusively  Covered  by  Federal  Law. — Cases  ex- 
clusively covered  by  any  federal  law,  are  as  a  rule  expressly  or 
impliedly  excluded  from  the  operation  of  the  compensation  acts 
by  special  .provisions  of  the  acts.  While  such  cases  would  be  ex- 

2nd  A.  R.  U.  S.  C.  C.  237;    In  re  Jeremiah  S.  Irish,  2nd  A.  R   U.  S.  C.  C. 
237. 

56.  Webster  v.   Stewart,— Mich.— ,  (1920),  177  N.  W.  230,  6  W.  C.  L. 
J.  63. 

57.  In  re  Jame?  M.  Ferreebee,  2nd  A.  R.  U.  S.  C.  C.  238. 

58.  In  re  Geo.  Holman.  2nd  A.  R.  U.  S.  C.  C.  239. 

59.  McClintic  Marshall  Co.  v.  Oleary,  —  La.  — ,  (1920).  84  So.  503,  6  W. 
C.  L.  J.  179. 

60. .  Hugh  Murphy  Const.  Co.  v.  Serck,  —  Neb.  — ,  (1920),  177  N.  W.  747, 
6  W.  C.  L.  J.  194. 
Note,  see  Sections  466  and  467. 
202 


WHO  COMES  UNDER  THE  ACT.  §   46 

eluded  regardless  of  such  provisions,  it  nevertheless  becomes  a 
matter  of  importance  to  determine  what  cases,  .otherwise  within 
the  provisions  of  the  acts  are  exclusively  covered  by  federal  law. 
On  May  17,  1917,  the  Supreme  Court  of  the  United  States 
handed  down  a  decision  to  the  effect  that  the  State  Compensa- 
tion Acts  do  not  apply  in  any  event  to  interstate  employees  on 
railroads,  as  the  Federal  Employers'  Liability  Act  of  1908  as 
amended  in  1910  (Section  8657-8665  United  States  Compiled 
Statutes  1916,  page  9338),  affords  the  exclusive  remedy  in  such 
cases.61  The  following  quotation  from  the  opinion  in  that  case 
is  pertinent  and  throws  much  light  on  this  subject  concerning 
which  there  has  been  considerable  controversy.  "It  is  settled 
that  under  the  commerce  clause  of  the  Constitution,  Congress 

61.  N.  Y.  Cent.  R.  R.  Co.  v.  Winfield,  244  U.  S.  147,  37  Supp.  546,  61 
L.  Ed.  1045  Ann.  Cas.  1917D,  1139;  rev'g  Winfield  v.  N.  Y.  Cen.  R.  R.  Co., 
216  N.  Y.  284,  110  N.  E.  614,  10  N.  C.  C.  A.  916:  Winfleld  v.  Erie  R.  R. 
Co.,  88  N.  J.  Law  619,  96  Atl.  394,  37  Sup.  Ct.  Rep.  556,  A  1  W.  C.  L.  J.  41. 
and  affirming  the  doctrine  of  Smith  v.  Ind.  Ace.  Com.  of  Cal.,  26  Cal.  App. 
560,  147  Pac.  600;  Staley  v.  111.  Cen.  R.  R.  Co.,  268  111.  356,  109  N.  E. 
342;  Matney  v.  Bush,  102  Kan.  293,  169  Pac.  1150,  1  W.  C.  L.  J.  617; 
Walker  v.  Chicago  etc.  R.  R.  Co.,  (Ind.  App)  117  N.  E.  969,  1  W.  C.  L.  J. 
362;  See  also,  Rounsaville  v.  Cen.  Railroad,  90  N.  J.  Law  176,  101  Atl. 
182,  reversing  judgment  87  N.  J.  L.  371,  94  Atl.  392;  McKenna  v.  N.  Y. 
Cent.  R.  Co.,  202  Mich.  103,  167  N.  W.  900,  2  W.  C.  L.  J.  300;  Miller  v. 
Grand  Trunk  Western  R.  Co.,  201  Mich.  72,  166  N.  W.  833,  1  W.  C.  L.  J. 
1021;  Crecilius  v.  Chic.  etc.  R.  Co.,  (Mo.)  205  S.  W.  181,  2  W.  C.  L.  J. 
809;  The  Erie  Lighter  (D.  C.)  250  Fed.  490,  2  W.  C.  L.  J.  606;  Erie  R. 
Co.  v.  Downs.  (C.  C.  A.),  250  Fed.  415,  2  W.  C.  L.  J.  599;  111.  Cent.  R.  Co. 
v.  Ind.  Bd.,  284  111  2667,  119  N.  E.  920,  2  W.  C.  L.  J.  444;  See  Brinsko's 
Estate  v.  Lehigh  Valley  R  Co.,  90  N.  J.  L.  658,  102  Atl.  390,  1  W.  C.  L.  J. 
431.  For  a  complete  discussion  of  all  cases  on  this  subject  prior  to  the 
above  decision  of  the  Supreme  Court  see  L.  R.  A.  1916A,  (note),  461; 
also  9  N.  C.  C.  A.  note  286-307,  6  N.  C.  C.  A.  (note)  920-933,  10  N.  C.  C.  A. 
(note)  916-925;  Kinsellaco  v.  N.  Y.  Cent.  R.  Co.,  175  N.  Y.  S.  363,  186  A. 
D.  856,  4  W.  C.  L.  J.  134;  Reilly  v.  Erie  Ry.  Co.,  264  Penn.  329.  107  Atl. 
736,  4  W.  C.  L.  J.  639;  N.  Y.  Cent.  R.  R.  Co.  v.  Porter,  249  U.  S.  168; 
Phil.  &  R.  Ry.  Co.  v.  Hancock,  40  Sup.  Ct.  512,  6  W.  C.  L.  J.  247;  Williams 
v.  Schaff,  —  Mo.  — ,  (1920),  222  S.  W.  412,  6  W.  C.  L.  J.  346;  Wangerbro 
v.  Indus.  Bd.,  —  111.  — ,  121  N.  E.  724,  3  W.  C.  L.  J.  439;  Erie  R.  Co.  r. 
Krysienski,  238  Fed.  142,  A  1  W.  C.  L.  J.  59;  Tandrum  v.  Western  A.  R. 
Co.,  —  Ga.  — ,  90  S.  E.  710,  A  1  W.  C.  L.  J.  298;  Savon  v.  Erie  Ry.  Co., 
—  N.  Y.  App.  — ,  116  N.  E.  983,  B  1  W.  C.  L.  J.  205. 

203 


§  46  WORKMEN'S  COMPENSATION  LAWS. 

may  regulate  the  obligation  of  common  carriers  and  the  rights 
of  their  employees  arising  out  of  injuries  sustained  by  the  latter 
where  both  are  engaged  in  interstate  commerce;  and  it  also  is 
settled  that  when  Congress  acts  upon  the  subject  all  State  laws 
covering  the  same  field  are  necessarily  superseded  by  reason  of 
the  supremacy  of  the  national  authority.  Congress  acted  upon 
the  subject  in  passing  the  Employer's  Liability  Act,  and  the  ex- 
tent to  which  that  act  covers  the  field  is  the  point  in  controversy. 
By  one  side  it  is  said  that  the  act,  although  regulating  the  liabili- 
ty or  obligation  of  the  carrier  and  the  right  of  the  employee 
where  the  injury  results  in  whole  or  in  part  from  negligence  at- 
tributable to  the  carrier,  does  not  cover  injuries  occurring  with- 
out such  negligence,  and  therefore  leaves  that  class  of  injuries 
to  be  dealt  with  by  State  laws;  and  by  the  other  side  it  is  said 
that  the  Act  covers  both  classes  of  injuries  and  is  exclusive  as  to 
both.  The  State  decisions  upon  the  point  are  conflicting.  The 
New  York  court  in  the  present  case  and  the  New  Jersey  court  in 
Winfield  v.  Erie  R.  R.  Co.,  88  N.  J.  Law  619,  hold  that  the  Act 
relates  only  to  injuries  resulting  from  negligence,  while  the  Cali- 
fornia court  in  Smith  v.  Industrial  Accident  Commission,  26  Cal. 
App.  560,  and  the  Illinois  court  in  Staley  v.  Illinois  Central  R. 
R.  Co.,  268  111.  356,  hold  that  it  has  a  broader  scope  and  makes 
negligence  a  test — not  of  the  applicability  of  the  Act,  but  of  the 
carrier's  duty  or  obligation  to  respond  pecuniarily  for  the  in- 
jury. In  our  opinion  the  latter  view  is  right  and  the  other  wrong. 
*  *  *  The  Act  is  entitled,  'An  Act  relating  to  the  liability  of  com- 
mon carriers  by  railroad  to  their  employees  in  certain  cases,'  and 
the  suggestion  is  made  that  the  words  'in  certain  cases'  require 
the  Act  be  restrictively  construed.  But  we  think  these  words  are 
intended  to  do  no  more  than  to  bring  the  title  into  reasonable 
accord  with  the  body  of  the  Act,  which  discloses  in  exact  terms 
that  it  is  not  to  embrace  all  cases  of  injury  to  the  employees  of 
such  carriers,  but  only  such  as  occur  while  the  carrier  is  engag- 
ing and  the  employee  is  employed  in  'commerce  between  any  of 
the  several  States,'  etc.  See  Employers'  Liability  Cases,  207  U. 
S.  463. 

"Only  by  disturbing  the  uniformity  which  the  Act  is  designed 
to  secure  and  by  departing  from  the  principle  which  it  is  intended 
204 


WHO  COMES  UNDER  THE  ACT.  .  §   46 

to  enforce  can  the  several  States  require  such  carriers  to  compen- 
sate their  employees  for  injuries  in  interstate  commerce  occurring 
without  negligence  But  no  State  is  at  liberty  thus  to  intertere 
with  the  operation  of  a  law  of  Congress.  As  before  indicated,  it 
is  a  mistake  to  suppose  that  injuries  occurring  without  negligence 
are  not  reached  or  affected  by  the  Act,  for,  as  is  said  in  Prigg  v. 
Pennsylvania,  16  Pet.  539,  617,  'if  Congress  have  a  constitutional 
power  to  regulate  a  particular  subject,  and  they  do  actually  regu- 
late it  in  a  given  manner,  and  in  a  certain  form,  it  cannot  be 
that  the  State  legislatures  have  a  right  to  interfere;  and,  as  it 
were,  by  way  of  complement  to  the  legislation  of  Congress,  to 
prescribe  additional  regulations,  and  what  they  may  deem  auxiliary 
provisions  for  the  same  purpose.  In  such  a  case,  the  legislation 
of  Congress,  in  what  it  does  prescribe,  manifestly  indicates  that 
it  does  not  intend  that  there  shall  be  any  further  legislation  to 
act  upon  the  subject-matter.  Its  silence  as  to  what  it  does  not 
do,  is  as  expressive  of  what  its  intention  is  as  the  direct  provisions 
made  by  it.'  Thus  the  Act  is  as  comprehensive  of  injuries  occur- 
ring without  negligence,  as  to  which  class  it  impliediy  excludes 
liability,  as  it  is  of  those  as  to  which  it  imposes  liability.  In  other 
words,  it  is  a  regulation  of  the  carrier's  duty  or  obligation  as  to 
both.  And  the  reasons  which  operate  to  prevent  the  states  from 
dispensing  with  compensation  where  the  Act  requires  it  equally 
prevent  them  from  requiring  compensation  where  the  Act  witholds 
or  excludes  it." 

It  has  been  held  that  where  a  street  car  company  is  both  an 
intrastate  and  an  interstate  carrier  an  employee  injured  while 
operating  a  car  confined  to  intrastate  traffic  is  not  coverel  by  the 
Federal  Employers  Liability  Act.62  This  act  refers  to  interstate 
commerce,  and  if  the  employee  at  the  time  of  the  injury  is  engaged 
in  interstate  transportation,  or  in  work  so  closely  related  thereto 
as  to  be  practically  a  part  thereof,  then  he  must  resort  to  his 
remedy,  if  any,  under  this  act,  and  is  not  entitled  to  benefits  under 
the  State  Workmen's  Compensation  Act."  Construction  work  was 

62.  Watts  v.  Ohio  Valley  Elec.  Ry.  Co.,  78  W.  Va.  144,  88  S.  E.  659. 

63.  111.  Cent.  R.  Co..  v.  Ind.  Bd.  284  111.  267,  119  N.  E.  920,  2  W.  C.  L.  J. 
444;    Vollmers  v.  N.  Y.  Cent.  R.  Co.,  180  App.  Dlv.  60,  167  N.  Y.  S.  428,  1 

205 


§  46  WORKMEN'S  COMPENSATION  LAVI 

held  not  to  be  so  closely  related  to  interstate  transportation  as  to 
be  a  part  of  it.64 

The  test  as  to  whether  an  employee  was  engaged  in  interstate 
commerce  at  the  time  of  the  injury  is  whether  the  performance 
of  the  act  he  was  engaged  in  directly  and  immediately  tended  to 
facilitate  the  movement  of  interstate  commerce.  Therefore,  where 
an  employee  was  unloading  concrete  tile,  which  had  been  shipped 
from  another  state,  after  it  arrived  at  its  destination  and  was 
injured  when  leaving  the  place  on  a  gasoline  car,  he  was  not  en- 
gaged in  interstate  commerce.65 

But  where  an  employee  was  injured  when  unloading  ties  from 
a  car  being  hauled  on  a  main  line  between  Omaha  and  Chicago, 
which  ties  were  to  be  used  to  replace  old  ties,  he  was  engaged 
in  interstate  commerce.68 

The  fact  that  an  employee  engaged  in  interstate  commerce  files 
a  claim  for  compensation  under  the  State  Workmen's  Compensa- 
tion Act  does  not  deprive  him  of  his  right  of  action  under  the 
Federal  Employer's  Liability  Act,67  nor  does  the  fact  that  the 

W.  C.  L.  J.  253,  Chicago,  etc.  R.  Co.  v.  Harrington,  241  U.  S.  178,  36  Sup. 
Ct.  517,  50  L.  Ed.  941;  Shanks  v.  Delaware,  etc.  R.  Co.,  239  U.  S.  556,  36 
Sup.  Ct.  188,  60  L  Ed.  436,  L.  R.  A.  1916C,  797;  Eskelson  v.  Union  Pac.  R. 
Co.,  102  Neb.  423,  168  N.  W.  366,  2  W.  C.  L.  J.  665;  N.  Y.  Cent.  R.  Co.  v. 
White,  243  U.  S.  188,  37  Sup.  Ct.  Rep.  247  L.  R.  A.  Ann.  Cas.  1917D, 
629;  Southern  Pac.  Co.  v.  Ind.  Ace.  Comm.  of  Cal.,  40  Supp.  Ct.  930,  5 
W.  C.  L.  J.  341;  Bergeron  v.  Texas  &  Pac.  R.  Co.,  144  La.  225,  80  So.  262, 
3  W.  C.  L.  J.  305;  Guida  v.  Penn.  R.  R.  Co.,  183  App.  Div.  822,  2  W.  C.  L.  J. 
679. 

64.  Pedersen  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  146,  152,  57  L.  Ed. 
1125  Ann.  Cas.  1914C,    153,  Chic.  C.  B.  &  Q.  R.  Co.  v.  Harrington.    241 
U.  S.  178,  36  Sup.  Ct.  517,  60  L.  Ed.  941. 

65.  Morrison  v.  Chicago  M.  &  St.  P.  Ry.  —  Wash.  — ,  175,  Pac.  325,  3 
W.  C.  L.  J.  81;   Hudson  &  M.  R.  Co.  v.  lorio  (N.  Y.)  239  Fed.  855,  A  1  W.  C. 
L.  J.  57;  Christy  v.  Wabash  Ry.  Co.,  Mo.,  191  S.  W.  241;   Giovio   v.   N. 
Y.  Cent.  R.  R.  Co.,  162  N.  Y..  1026,  B  1  W.  C.  L.  J.  1226. 

66.  Reed  v.  Dickinson,  {Iowa),  169  N.  W.  673;    Gulf  C.  &  S.  F.  Ry.  Co. 
v.  Drennan,  204  S.  W.  691,  —  Tex.  Civ.  App.  — ,  2  W.  C.  L.  J.  701,  241  U. 
S.  177,  180;    11  N.  C.  C.  A.  992;    Raymond  v.  Chicago,  M.  &  St.  P.  R.  Co., 
243  U.  S.  43,  147  C.  C.  A.  245,  233  Fed.  239;    Delaware,  L.  &  W.  R.  Co.  v. 
Yurkonia  238  U.  S.  439. 

67.  Troxell  v.  Del.  L.  &  W.  R.  R.  Co.,  227  U.  S.  434,  33  Sup.  Ct.  274, 
57  L.  Ed.  586;    Waters  v.  Guile,  148  C.  C.  A.  298,  234  Fed.  532;    nor  con- 

206 


WHO  COMES  UNDER  THE   ACT.  §    4f> 

defendant  railroad  ompany  paid  part  of  the  injured  servant '< 
hospital  hill,  show  an  acceptance  of  the  Michigan  Workmen's  Com- 
pensation Act  so  as  to  exclude  suit  under  the  Federal  Employer's 
liability  Act."9 

It  has  been  held  that  where  the  employing  railroad  is  engaged 
in  both  interstate  and  intrastate  commerce,  to  relieve  itself  of 
the  obligation  to  pay  compensation  under  the  Illinois  Compensa- 
tion Act,  (Hurd's  Rev.  St.  1917,  c.  48,  Sees.  126-152)  it  had  the 
burden  of  showing  that  at  the  time  of  the  injury  the  servant  was 
actually  engaged  in  interstate  commerce;8"  that  in  a  proceeding  to 
recover  compensation  the  burden  was  on  the  petitioner  to  show 
affirmatively  that  decedent  was  engaged  in  intrastate  service  not 
regulated  by  the  Federal  Employer's  Liability  Act;70  that  the  In- 
dustrial Accident  Board  has  no  jurisdiction  of  a  servant's  claim  for 
compensation  under  the  Compensation  Act  for  injury,  where  the 
servant  was  employed  upon  a  car  ferry  in  interstate  commerce 
when  the  accident  occurred  ;71  that  a  timekeeper  of  a  gang  of  work- 
men repairing  a  track  used  in  interstate  commerce,  who  was  killed 
while  crossing  the  tracks  on  his  way  to  telegraph  a  report  to 
the  roadmaster  was  engaged  in  interstate  commerce  at  the  time 
of  the  accident,  although  it  occurred  after  the  men  had  ceased 
work;72  that  employees  engaged  in  constructing  telegraph  lines 
were  not  engaged  in  interstate  commerce,  although  the  company 

versely.  Jackson  v.  Ind.  Bd.  of  111.   See  117  N.  E.  705.  1  W.  C.  L.  J.  160. 

68.  Grand  Trunk  R.  Co.  v.  Knapp.  147,  C.  C.  A.  624,  233  Fed.  950. 

69.  111.  Cent.  R.  Co.  v.  Ind.  Bd.,  284  111.  267,  119  N.  E.  920,  2  W.  C.  L.  J. 
444,  N.  Y.  C.  &  H.  R.  R.  Co.,  v.  Carr  238  U.S.  260;  Shanks  v.  Delaware 
L.  A  W.  R.,  239  U.  S.  556,  L.  R.  A.  1916C,  797;    Westmans  Case,  106  All. 
532,  4  W.  C.  L.  J.  213,  (1910);  Atchison  T.  &  S.  F.  Ry.  Co.  v.  Industrial 
Commission.  —  111.  — ,  125  N.  E.  380,  5  W.  C.  L.  J.  364. 

70.  Lincks  v.  Erie  R.  Co.  91  N.  J.  Law  166,  103  Atl.  176,  1  W.  C.  L.  J. 
1096. 

71.  Thornton  v.  Grand  Trunk-Milwaukee  Car  Ferry  Co.,  202  Mich.  609, 
166  N.  W.  833,  1  W.  C.  L.  J.  1019.    See  also  Miller  v.  Grand  Trunk  etc.  R. 
Co.,  201  Mich.  72,  166  N.  W.  833;  Carey  v.  Grand  Trunk  Western  R.  Co., 
200  Mich.  12,  166  N.  E.  492.  1  W.  C.  L.  J.  820;   Kennedy  v.  Coon,  (N.  J.). 
106  Atl.  210,  4   W.  C.  L.  J.  117. 

72.  Creachus  v.  Chicago,  etc.  R.  Co.,  (Mo.),  205  S.  W.  181,  2  W.  C.  L.  J. 
809. 

207 


§  46  WORKMEN'S  COMPENSATION  LAWS. 

employing  them  was  so  engaged.73  But  under  the  1917  amendment 
to  the  Washington  Act,  c.  28,  p.  96,  section  19,  an  employee  is 
not  entitled  to  compensation  for  injuries  received  while  engaged 
in  painting  bridges  situated  in  the  state  on  the  line  of  a  railroad 
engaged  in  interstate  commerce,  although  working  for  an  inde- 
pendent contractor.  An  employee  is  exempted  from  the  Washing- 
ton Act  when  he  is  engaged  in  maintenance  work  upon  railroads 
engaged  in  interstate  or  intrastate  commerce.74  An  employee 
working  as  a  lineman  on  an  interstate  railroad's  anchor  bridge, 
which  spans  its  main  line,  is  covered  by  the  Federal  Employer's 
Liability  Act.75 

If  the  work  in  which  an  employee  of  a  railroad,  engaged  ia 
both  interstate  and  intrastate  commerce,  was  injured  was  a  part 
of  interstate  commerce  he  was  not  entitled  to  compensation  under 
the  Compensation  Law.76 

It  has  been  held  that  a  flagman  killed  by  an  automobile  while 
he  was  crossing  the  intersection  of  defendant's  railroad  track  and 
a  city  street  to  get  his  lantern  was  engaged  in  interstate  commerce, 
depriving  the  Workmen's  Compensation  Board  of  jurisdiction;77 
that  a  plumber  employed  in  the  maintenance  of  ways  department 
of  an  interstate  carrier,  engaged  in  repairing  pipes  in  a  station, 
who  was  killed  by  a  train  while  crossing  tracks  in  the  course  ot' 
his  employment  was  not  entitled  to  compensation  since  he  was 

73.  State  v.  Postal-Cable  Co.,  101  Wash.  630,  172  Pac.  902,  2  W.  C.  L.  J. 
400;  Williams  v.  Schaff,  —  Mo.  — ,  (1920),  222  S.  W.  412,  6  W.  C.  L.  J. 
346. 

74.  Luby  v.  Indus.  Ins.  Comm.  —  Wash.  —   191  Pac.  855. 

75.  Baker  v.  N.  Y.,  N.  H.  &  H.  Ry.  Co.,  —  App.  Div.  — ,  181  N.  Y.  Supp., 
675,  6  W.  C.  L.  J.  76. 

76.  Dickinson  v.  Ind.  Bd.,  280  111.  342,  117  N.  E.  438,  1  W.  C.  L.  J.  27; 
Southern  Pac.  R.  Co,  v.  Indus.  Comm.,  —  Cal.  — ,  161  Pac.  1143,  A  1  W.  C. 
L.  J.  213;   Flynn  v.  N.  Y.  S.  &  W.  R.  Co.,  101  Atl.  1034,  B  1  W.  C.  L.  J.  1164  J 
Di  Donate  v.  Philadelphia  &  Ry.  Co.,  —  Pa.  — ,  109  Atl.  625,  5  W.  C.  L.  J. 
897.    Flagging  intrastate  train  on  interstate  railroad. 

77.  Walker  v.  Chicago,  etc.  R.  Co.,  64  Ind.  App.  — ,  117  N.  B.  969,  1  W.  C. 
L.  J.  362;    South.  Pac.  R.  Co.  v.  Indus.  Com.,  —  Cal.  — ,  161  Pac.  1139,  A  1 
W.  C.  L.  J.  204;  S.  P.  R.   Co.  v.  Indus.  Comm.,  161.    Pac.  1142,  A  1   W. 
C.  L.  J.  211;  West  v.  Atl.  Coast  Line  Ry.  Co.,  —  N.  C.  —  93  S.  E.  479,  B 
1  W.  C.  L.  J.  1452. 

208 


WHO  COMES  UNDER  THE  ACT.  §   46 

engaged  in  interstate  commerce;78  that  a  servant  in  switch  yards 
operating  a  motor  to  carry  switchmen  back  and  forth,  and  injured 
while  hauling  switchmen  who  had  been  looking  after  cars  of  coal 
moving  within  the  state,  but  because  they  belonged  to  the  company 
subject  to  reconsignment  to  points  without  the  state,  was  not  en- 
gaged in  interstate  commerce;70  that  where  a  switchman  had  just 
assisted  in  switching  a  string  of  50  or  60  cars,  some  of  which 
were  loaded  with  interstate  shipments,  and  was  returning  to  his 
engine  when  he  was  struck  and  injured,  was  engaged  in  interstate 
commerce  within  the  meaning  of  the  Federal  Employer's  Liability 
Act;80  that  a  towboat  was  engaged  in  interstate  commerce  so  that 
an  injured  servant  could  not  recover  compensation  under  the 
Massachusetts  Act;81  that  where  decedent  at  the  time  he  received 
Ms  fatal  injuries  was  employed  in  interstate  commerce  by  a  rail- 
road company  on  one  of  its  boats  which  was  being  used  for  that 
purpose,  the  Federal  Employer's  Liability  Act  applies;82  that 
a  contract  by  which  the  employee  was  to  act  as  second  mate  in 
a  voyage  from  San  Francisco  to  a  point  in  Canada  and  return  was 
a  maritime  contract  relating  to  foreign  commerce  within  the  ex- 
clusive jurisdiction  of  the  United  States  Courts,  and  the  Industrial 
Commission  had  no  jurisdiction;83  that  a  laborer,  fatally  injured 
while  cleaning  soot  from  a  boiler  in  a  railroad's  power  plant. 

78.  Vollmers  v.  N.  Y.  Cent.  R.  Co.,  180  App.  Div.  160,  167  N.  Y.  S.  426, 
1  W.  C.  L.  J.  253. 

79.  111.  Cent.  R.  Co.  v.  Ind.  Bd.,  284  111.  267,  119  N.  E.  920,  2  W.  C.  L. 
J.  445. 

80.  Erie  R.  Co.  v.  Downs  (C.  C.  A.),  250,  Fed.  415,  2  W.  C.  L.  J.  599; 
Phil.  &  R.  Ry.  Co.  v.  Hancock,  —  U.  8.  — ,  40  Sup.  Ct.  R.  512,  6  W.  C.  L.  J. 
247;    King  v.  Norfolk  S.  Ry.  Co.,  —  N.  C.  — ,  97  S.  E.  29,  3  W.  C.  L.  J.  69; 
Gaddy  v.  N.  Carolina  R.  Co.,  —  N.  C.  — ,  95  S.  E.  925,  2  W.  C.  L.  J.  112; 
Chicago  &  Erie  R.  Co.  v.  Feightner,  —  Ind.  App.  — ,  114  N.  E.  659,  A  1  W. 
C.  L.  J.  476.    Morrison  v.  Commercial  Towboat-  Co.,  227  Mass.  237,  116 
N.  E.  499. 

81.  Geer  v.  St.  Louis,  S.  F.  *  T.  R.  Co.,  —  Tex.  — ,  194  S.  W.  939,  B  1 
W.   C.  L.  J.  1521. 

82.  The  Erie  Lighter  (D.  C.),  250  Fed.  490,  2  W.  C.  L.  J.  606;   Charlton 
v.  Hilton  Dodge  Transport  Co.,  164  N.  Y.  S.  999,  B  1  W.  C.  L.  J.  1281. 

83.  Tallac  Co.  v.  Pillsbury,  176  Cal.  236,  168  Pac.  17,  1  W.  C.  L.  J.  7; 
Hinson  v.  Atl.  ft  C.  Air  Line  Co.,  —  N.  C.  — ,  90  S.  E.  772,  B  1  W.  C.  L.  J. 
1445. 

209 
W.  C.— 14 


§    46  WORKMEN  *S   COMPENSATION  LAW 

generating  electricity  for  operation  of  trains  partly  in  New  York 
and  partly  in  New  Jersey  was  engaged  in  interstate  commerce, 
and  the  Industrial  Commission  had  no  jurisdiction  to  make  an 
award  ;84  that  the  remedy  of  the  widow  of  a  railroad  servant, 
killed  in  service,  is  not  under  the  Federal  Employer's  Liability 
Act  unless  the  particular  work  on  which  the  employer  was  engaged 
at  the  very  time  of  the  accident  was  a  part  of  the  interstate  com- 
merce in  which  the  carrier  was  engaged.85 

In  what  is  probably  at  this  time  the  leading  case  on  this  subject 
the  Supreme  Court  of  the  Unted  States  said:  "The  true  test 
always  is :  Is  the  work  in  question  a  part  of  the  interstate  commerce 
in  which  the  carrier  is  engaged?"  In  this  case  it  was  held  that 
one  carrying  bolts  to  be  used  in  repairing  an  interstate  railroad 
and  who  was  injured  by  an  interstate  train  was  entitled  to  invoke 
the  Federal  Employer's  Liability  Act.86 

An  employee  performing  the  duties  of  a  janitor  in  a  railroad 
machine  shop,  injured  by  a  splinter  while  breaking  kindling,  was 
not  engaged  in  interstate  commerce,  though  engines  engaged  in 
interstate  commerce  were  repaired  at  the  shop.87 

An  employee  killed  while  washing  the  boiler  of  a  locomotive, 
not  assigned  to  any  particular  work  or  train  was  not  engaged  in 
interstate  commerce.88 

A  watchman  guarding  an  interstate  shipment  was  held  to  be 
engaged  in  interstate  commerce.89 

One  who  repaired  an  engine  regularly  used  in  interstate  com- 
merce was  himself  engaged  in  interstate  commerce,90  as  was  one 

84.  Guida  v,  Penn.  R.  Co.,  183  App.  Div.  822,  171  N.  Y.  S.  285,  2  W.  C. 
L.  J.  679. 

85.  Lincks  v.  Erie  R.,  91  N.  J.  Law  166,  103  Atl.  176.  1  W.  C.  L.  1096; 
Pedersen  v.  Del.,  L.  &  W.  R.  R.  Co.,  229  U.  S.  146;  Erie  R.  Co.  v.  Collins, 
253  U.  S.  77. 

86.  Mo.  Pac.  R.  Co.  et  al.  v.  Mette,  261  Fed.  755,  5  W.  C.  L.  475. 

87.  Heed  v.  Ind.  Comm.  et  al.,  287  111.  505,  122  N.  E.  801,  4  W.  C.  L.  J.  27. 

88.  Chicago  R.  I.  &  P.  Ry.  Co.  v.  Ind.  Comm.,  288  111.  126,  123  N.  E.  278, 
4  W.  G.  L.  J.  159;    Reynolds  v.  Philadelphia  &  R.  Ry.  Co.,  —  Pa.  — ,  109 
Atl.  660,   5  W.  C.  L.  J.  900. 

89.  O'Brien  v.  Penn.  R.  Co.,  187  N.  Y.  App.  Div.  839,  176  N.  Y.  S.  390, 
4  W.  C.  L.  J.  290. 

90.  Atlantic  Coast  Line  R.  Co.  v.  Woods,  252  Fed.  428,  3  W.  C.  L.  J.  6. 
210 


WHO  COMES  UNDER  THE  ACT.  §   46 

engaged  in  repairing  a  railroad  track  used  in  interstate  com- 
merce.91 

One  killed  while  engaged  in  making  repairs  upon  cars  on  siding, 
some  of  which  were  interstate  cars  was  engaged  in  interstate  com- 
merce.92 

Where  a  freight  terminal  was  in  process  of  construction,  one 
engaged  in  wheeling  brick  from  a  car  on  a  siding  to  the  terminal 
was  not  engaged  in  interstate  commerce.93 

Where  claimant  alleges  that  he  suffered  an  injury  while  carry- 
ing drawbars  from  one  pile  to  another  pile  in  the  yards,  and  the  de- 
fendant admits  this  allegation  by  his  answer,  a  finding  that  claim- 
ant was  injured  while  loading  drawbars  on  a  car  for  interstate 
shipment,  is  against  the  evidence  in  the  case,  since  under  the 
pleadings  no  such  evidence  was  admissable.94 

The  Washington  Compensation  Act  (Sec.  18)  as  amended  in 
1917  places  all  employees  of  railroads  outside  of  the  act  and  gives 
those  engaged  in  intrastate  commerce  the  same  right  of  recovery 
as  they  would  have  under  the  Federal  Employers  Liability  Act 
were  they  engaged  in  interstate  commerce.98 

Where  the  employment  is  too  remote  to  be  considered  as  a  part 
of  or  in  furtherance  of  interstate  commerce  the  compensation  act 
applies  unconditionally.9" 

One  engaged  in  cutting  weeds  along  a  railroad  right  of  way 
was  held  not  to  be  engaged  in  interstate  commerce  and  that  the 
State  Act  covered  the  employment,  there  being  evidence  that  the 
weeds  were  being  cut  merely  to  comply  with  the  railroad  law.07 

91.  Kalashian  v.  Hines,  etc.,  —  Wis.  — ,  177  N.  W.  602,  6  W.  C.  L.  J.  240. 

92.  Southern  Pac.  Co.  v.  Indus.  Ace.  Comm.,  179  Cal.  69,  175  Pac.  453,  3 
W.  C.  L.  J.  12. 

93.  Matti  v.  Chicago,  M.  A  St.  P.  Ry.  Co.,  55  Mont.  280,  176  Pac.  154,  3 
W.  C.  L.  J.  163. 

94.  Savich  v.  Hines,  —  Wte.  — ,  1921,  182  N.  W.  924. 

95.  Spokane  &  I.  E.  Ry.,  et  al.  v.  Wilson,  et  al.,  104  Wash.  171,  176  Pac. 
34,  3  W.  C.  L.  J.  201. 

96.  Suttle   v.   Hope   Natural   Gas  Co.,   82   W.  Va.   729,   97   S.   E.   429, 
3  W.  C.  L.  J.  205. 

97.  Plass  T.  Central  New  England  R.  R.  Co..  226  N.  Y.  449,  123  N.  E. 
852,  4  W.  C.  L.  J.  527,  Dissenting  opinion  based  on  authority  of  N.  Y.  C.  * 
H.  R.  R.  R.  Co.  v.  Porter,  249  U.  S.  168,  39  Sup.  Ct.  188,  63  L.  Ed.  536. 

211 


§  46  WORKMEN'S  COMPENSATION  LAWS. 

That  a  laborer  engaged  in  work  about  a  train  shed,  picking  up 
waste  paper,  etc.,  whose  clothing  caught  fire  while  cleaning  switch 
lamps  was  not  employed  in  interstate  commerce.98 

That  a  millwright  who  was  injured  while  ripping  a  piece  of 
timber  that  was  to  be  used  in  the  repair  of  a  caboose  was  not 
engaged  in  interstate  commerce,  it  not  being  shown  that  the  timber 
was  ever  used  or  that  the  caboose  was  removed  from  service  for 
repairs  at  the  time  the  injury  was  sustained." 

That  employees  of  a  railroad  shop  engaged  in  shifting  a  car 
of  lumber  about  the  shop  preparatory  to  unloading  it  were  not 
engaged  in  interstate  commerce,  though  the  lumber  was  eventually 
to  be  used  in  repair  of  interstate  cars.1 

A  general  handy  man  around  locomotives  engaged  in  interstate 
commerce,  providing  coal,  water,  and  attending  to  the  moving 
thereof,  is  engaged  in  interstate  commerce.2 

It  has  been  held  that  interstate  commerce  ceases  upon  the  ship- 
ment reaching  its  destination,  therefore  a  switchman  injured 
while  switching  cars  the  day  after  they  had  reached  their  destina- 
tion was  not  engaged  in  interstate  commerce.3 

Where  an  employee,  belonging  to  a  local  switching  crew,  was 
injured  while  setting  a  brake  on  a  car  on  a  siding  after  it  had 
come  from  Pennsylvania  consigned  to  a  point  in  New  Jersey  was 
not  engaged  in  interstate  commerce.4 

One  engaged  in  instructing  motormen  in  how  to  operate  motors 
in  interstate  business  was  employed  in  interstate  commerce.6 

98.  Gingliano  v.  Lehigh  Valley  R.  R.  Co.,  224  N.  Y.  713,  129  N.  E.  869; 
Killes  v.  G.  N.  Ry.  Co.,  —  Wash.  — ,  171  Pac.  69. 

99.  Fish  v.  Ruthland  R.  Co.,  189  App.  Div.  352,  178  N.  Y.  S.  439,  5  W. 
C.  L.  J.  98. 

1.  Barnett  v.  Coal  &  Coke  Ry.  Co.,  81  W.  Va.  251,  94  S.  E.  150,  1  W. 
C.  L.  J.  280;  Mo.  K.  &  T.  Ry.  Co.  v.  Watson,  —  Tex.  Civ.  App.  — ,  195  S.  W. 
1177,  B  1  W.  C.  L.  J.,  1581. 

2.  Guy  v.  Cincinnati  N.  R.  Co.,  —  Mich.  — ,  164  N.  W.  454,  A  1  W.  C.  L. 
J.  924. 

3.  Louisville  &  N.  R.  Co.  v.  Meadors'  Adm'r,  —  Ky.  App.  — ,  197  S.  W. 
440,  A  1  W.  C.  L.  J.  692. 

4.  Delaware,  L.  &  W.  R.  Co.  v.  Peck,  255  Fed.  261,  3  W.  C.  L.  J.  559. 

5.  Dumphy  v.  Norfolk  &  Western  Ry.,  W  Va.  95  S.  E.  863,  2  W.  C.  L. 
J.  180. 

212 


WHO  COMES  UNDER  THE  ACT.  §   46 

A  street  railway  engaged  in  carrying  passengers  between  states, 
is  a  common  carrier  by  railroad  within  the  meaning  of  the  Federal 
Employers'  Liability  Act.6 

A  car  repairer  employed  by  an  interstate .  carrier  was  not 
engaged  in  interstate  commerce  while  repairing  a  car  belonging 
to  another  interstate  carrier  and  which  was  to  be  returned  to 
interstate  commerce.7 

Where  the  record  fails  to  show  whether  the  claimant  was  struck 
by  an  interstate  or  intrastate  train,  the  Supreme  Court  will  as- 
sume that  it  was  an  intrastate  train.8 

Employees  appointed  by  the  Federal  government  and  under 
its  control  although  temporarily  engaged  in  work  pertaining  to 
and  within  a  state,  and  though  paid  in  part  by  the  state  are  under 
the  Federal  Workmen's  Compensation  Act.9 

An  accident  to  an  employee  engaged  on  an  interstate  train  and 
not  engaged  in  interstate  commerce  is  compensable  under  the 
State  Act.10 

It  was  at  first  quite  generally  held  that  the  admiralty  law  not 
being  exclusive  as  to  cases  within  its  jurisdiction  it  did  not  affect 
the  jurisdiction  of  the  State  Compensation  Acts  over  admiralty 
cases.  "Congress  having  in  no  way  legislated  in  the  premises,  at 
least  so  far  as  interstate  commerce  by  water  is  concerned,  the  State 
has  th«  right  to  enact  laws  incidentally  affecting  interstate  com- 
merce."11 It  was  held  that  the  injured  employee  must,  however, 
elect  whether  he  would  proceed  in  admiralty  or  under  the  state 
compensation  act.  "A  party  cannot  enforce  both  remedies  and  will 
be  required  to  elect  whether  to  pursue  his  common  law  remedy  or 
proceed  in  admiralty.  The  Workmen's  Compensation  Act  while 

6.  Nelson  v.  Ironwood  &  B.  Ry.  ft  Light  Company,  —  Mich.  — ,  170 
N.  W.  45,  3  W.  C.  L.  J.  327. 

I,  Central  R.  Co.  of  N.  J.  v.  Paslick,  239  Fed.  713,  A  1  W.  C.  L.  J.  55. 

8.  Payne  v.  Indus.  Comm.  —  111.  — ,  (1921),  129  N.  E.  830. 

9.  In  re  Harrold  R.  Smalley,  2nd  A.  R.  U.  8.  C.  C.  63;    In  re  Hamer 
Bobo,  2nd  A.  R.  U.  S.  C.  C.  64;  In  re  G.  W.  Constable,  2nd  A.  R.  U.  S.  C  C. 
65.    But  see  Midwest  Bank  v.  Davis,  —  Mo.  — ,  233  S.  W.  406. 

10.  Zimmerman  v.  New  York  Cent.  R.  Co.,  180  App.  Div.  98,  167  N.  1. 
S.  501,  1  W.  C.  L.  J.  233. 

II.  Stoll  v.  Pac.  Steamship  Co.,  205  Fed.  169;    L.  R.  A.  1916A  (note) 
461-465;   10  N.  C.  C.  A.   (note)   688-699. 

213 


§  46  WORKMEN'S  COMPENSATION  LAW 

it  took  away  the  common-law  action,  provided  in  its  stead  another 
remedy.  If  the  libelant  determined  to  obtain  relief  from  the 
substitute  which  is  provided  for  his  common-law  remedy,  and 
received  compensation  under  such  act,  then  he  can  not  proceed 
in  admiralty  and  thus  obtain  double  compensation  for  the  injury 
of  which  he  complains. " 12  But  see  to  the  contrary  Liverani  v. 
John  T.  Clark  &  Son,  176  N.  Y.  Supp.  725,  4  W.  C.  L.  J.  545. 
It  was  held  in  a  Washington  case  that  since  Art.  4283  of  the 
Federal  Statutes  limited  the  liability  of  the  owners  of  a  vessel, 
the  state  legislature  had  not  the  power  to  fix  another  standard 
or  measure  by  means  of  the  State  Workmen's  Compensation  Act. 
This  was  in  the  case  of  an  injury  suffered  by  an  employee  on  a 
vessel  operating  upon  Puget  Sound,  and  engaged  in  intrastate 
commerce.13  The  contrary  was  held  in  a  New  York  case  where 
a  workman  was  injured  while  working  upon  a  navigable  river; 
but  this  decision  was  later  reversed  by  the  United  States  Supreme 
Court.14 

The  preceeding  paragraph  is  now  chiefly  historical  in  so  far 
as  it  pertains  to  election  in  admiralty  or  under  the  compensation 
act.  The  decision  of  the  Supreme  Court  in  the  case  of  Southern 
Pac.  Co.  v.  Jensen,  224  U.  S.  205,  declared  the  New  York  Work- 
men 's  Compensation  Act  to  be  unconstitutional  where  it  was  sought 
to  apply  it  to  longshoremen  engaged  in  loading  or  unloading  vessels 
engaged  in  interstate  commerce,  declaring  such  rights  and  liabili- 
ties to  be  within  the  jurisdiction  of  admiralty.  Subsequent  to  this 
decision  congress  enacted  the  amendment  of  October  6,  1917,  to 

12.  Fred.  E.  Sander,  212  Fed.  545,  5  N.  C.  C.  A.  97;  Dziengelewsky  v. 
Turner  &  Blanchard,  Inc.,  176  N.  Y.  S.  729,  4  W.  C.  L.  J.  445;  Riegel  v. 
Higgins,  (Wash.),  241  Fed.  718,  A  1  W.  C.  L.  J.  80. 

13.'  State  of  Washington,  ex  rel.  Frank  Jarvis,  v.  Daggett  et  al.,  151  Pac. 
648,  L.  R.  A.  1916A,  446;  Barrett  v.  MaComber  &  Nickerson  Co.,  (R.  L), 
253  Fed.  205,  3  W.  C.  L.  J.  89;  Shaughnessy  v.  Northland  S.  S.  Co.,  — 
Wash.  — ,  (1917),  162  Pac.  546,  B  1  W.  C.  L.  J.  1602. 

14.  Re  Walker,  215  N.  Y.  529,  109  N.  E.  604,  Reversed  by  Clyde  Steam- 
ship Co.  v.  Walker,  244  U.  S.  255,  37  Sup.  Ct.  545,  61  L.  Ed.  1116,  See, 
also,  Southern  Pac.  Co.  v.  Jensen,  244  U.  S.  205,  37  Sup.  Ct.  524,  61  L. 
Ed.  1086,  Ann.  Cas.  1917E,  900.  Holding  New  York  Compensation  Act 
invalid  as  applying  to  ocean  going  steamships  being  in  conflict  with 
the  constitution. 
214 


WHO  COMES  UNDER  THE  ACT.  §   46 

the  Federal  Judicial  Code  (Act  Cong.  March  3,  1911,  c.  231,  Sec. 
24,  cl.  2  and  section  256,  cl.  3,  36  Stat.  1001,  1160,  as  amended  by 
Act.  Cong.  Oct.  6,  1917,  c.  97,  40  Stat.  395)  saving  to  claimants, 
subject  to  admiralty  jurisdiction,  the  rights  and  remedies  under 
the  Workmen's  Compensation  Act  of  any  state,  which  settled  the 
controversy  theretofore  existing  in  that  regard  in  admiralty  cases, 
until  as  hereinafter  mentioned  the  Supreme  Court  of  the  United 
States  held  this  amendment  to  be  unconstitutional. 

It  was  held  in  a  New  Jersey  case  that  this  amendment  did  not 
validate  a  compensation  action  begun  in  a  state  court  before  its 
passage  and  which  at  the  time  of  such  passage  the  state  court 
had  no  jurisdiction  to  entertain.15 

Prior  to  the  enactment  of  the  amendment  of  Oct.  6,  1917,  by 
Congress  the  terms  of  some  of  the  compensation  acts  were  broad 
enough  to  include  employees  engaged  in  discharging  or  loading 
cargoes  upon  vessels  engaged  in  interstate  commerce,  but  did  not 
actually  include  them  because  of  the  conflict  with  the  existing 
Federal  Law.  So  the  employee  injured  while  so  engaged  had  bis 
remedy  in  Admiralty  or  under  the  common  law.18 

After  the  enactment  by  Congress  of  the  above  mentioned  amend- 
ments the  New  York  Court  of  Appeals  upheld  the  constitutionali- 
ty of  the  provision  of  the  New  York  Act  as  it  applies  to  those 
engaged  in  maritime  pursuits.17 

But  on  May  17,  1920,  the  Supreme  Court  of  the  United  States 
had  before  it  for  consideration  the  aforementioned  amendment 
or  Act  of  Oct.  6,  1917,  amending  the  Judicial  Code,  Sections  24, 
and  256,  (Comp.  St.  1918,  Comp.  St.  Ann.  Supp.  1919,  Sections  991 
(3),  and  (1233),  relative  to  the  jurisdiction  of  federal  courts,  so 
as  to  save  to  suitors  in  all  cases  the  right  of  a  common  law  remedy, 
etc.,  "and  to  claimants  the  rights  and  remedies  under  the  Work- 

15.  Coon  v.  Kennedy  91  N.  J.  Law  598.  103  Atl.  207.  1  W.  C.  L.  J.  1101; 
Peters  v.  Veaaey,  40  S   C.  65,  5  W.  C.  L.  J.  127;  Hartman  v.  Toyo  Kisen 
Kaisha  S.  S.  Co.,  247  Fed.  516.  A  1  W.  C.  L.  J.  85. 

16.  Duart  v.  Simmons,  231  Maes.  313,  121  N.  E.  10;    3  W.  C.  L.  J.  136; 
Sullivan  v.  Hudson  Nav.  Co.,  182  N.  Y.  App.  Div.  512,  169  N.  Y.  S.  645,  1 
W.  C.  L.  J.  1105.^ 

17.  Stewart  v.  Knickerbocker  Ice  Co.,  229  N.  Y.  302,  123  N.  E.  382,  4 
W.  C.  L.  J.  271. 

215 


§  46  WORKMEN'S  COMPENSATION  LAWS. 

men's  Compensation  Law  of  any  state,"  which  amendment  seeks 
to  authorize  and  sanction  actions  by  the  states  in  prescribing  and 
enforcing  rights,  obligations,  liabilities  and  remedies  designed  to 
provide  compensation  under  the  Compensation  Acts  of  the  several 
states  for  injuries  to  employees  engaged  in  maritime  work,  and 
as  so  construed,  the  court  held  it  to  be  beyond  the  power  of 
Congress,  on  the  ground  that  its  power  to  legislate  concerning 
rights  and  liabilities  within  the  maritime  jurisdiction  and  remedies 
for  their  enforcement  cannot  be  delegated  to  the  states,  especially 
as  it  would  destroy  the  uniformity  contemplated  by  the  Constitu- 
tion. The  court  said:  "While  employed  by  Knickerbocker  Ice 
Company  as  a  bargeman  and  doing  work  of  a  maritime  nature, 
William  M.  Stewart  fell  into  the  Hudson  river  and  drowned — 
August  3,  1918.  His  widow,  defendant  in  error,  claimed  under 
the  Workmen's  Compensation  Law  of  New  York  (Consol.  Laws 
c.  67)  ;  the  Industrial  commission  granted  an  award  against  the 
company  for  her  and  the  minor  children;  and  both  Appellate 
Division  and  the  Court  of  Appeals  approved  it.  Stewart  v.  Knick- 
erbocker Ice  Co.,  226  N.  Y.  302,  123  N.  E.  382.  The  latter  con- 
cluded that  the  reasons  which  constrained  us  to  hold  the  Com- 
pensation Law  inapplicable  to  an  employee  engaged  in  maritime 
work— Southern  Pacific  Co.  v.  Jensen,  244  U.  S.  205,  37  Sup.  Ct. 
524,  61  L.  Ed.  1086,  L.  R.  A.  1918C,  451,  Ann.  Gas.  1917E,  900, 
— had  been  extinguished  by  "An  act  to  amend  Sections  twenty- 
four,  and  two  hundred  fifty-six  of  the  Judicial  Code,  relating  to  the 
jurisdiction  of  the  District  Courts,  so  as  to  save  to  claimants  the 
rights  and  remedies  under  the  Workmen's  Compensation  Law  of 
any  State"  approved  October,  6,  1917.  40  Stat.  c.  97  (Comp. 
St.  1918,  Comp.  St.  Ann.  Supp.  1919,  Sections  991  (3),  1233). 

"The  provision  of  Section  9,  Judiciary  Act,  1789,  (1  Stat.  76, 
c.  20)  granting  to  the  United  States  District  courts  'exclusive 
original  cognizance  of  all  civil  causes  of  admiralty  and  mari- 
time jurisdiction,  *  *  *  saving  to  suitors,  in  all  cases 
the  right  of  a  common  law  remedy,  where  the  common  law  is 
competent  to  give  it,'  was  carried  into  the  Revised  Statutes 

(sees.  563  and  711,  Comp.   St.   Sec.    1233)    and   thence   into   the 
Judicial  Code   (clause  3,  sees.  24  and  256,  Comp.   St.  sec.   991 

(3),   1233.)    The  saving  clause   remained   unchanged   until    the 
216 


WHO  COMES  UNDER  THE  ACT.  §    46 

statute  of  October  6,  1917,  added  "and  to  claimants  the  rights 
and  remedies  under  the  Workmen's  Compensation  Law  of  auy 
State."  In  Southern  Pacific  Co.  v.  Jensen  (May,  1917),  244  U. 
S.  205,  37  Sup.  Ct.  524,  61  L  Ed.  1086,  L.  R.  A.  1918C,  451, 
Ann.  Cas.  191 7E,  900,  we  declared  that  under  Section  2,  Article 
III,  of  the  Constitution  ('The  Judicial  Power  shall  extend 
to  *  *  *  all  cases  of  admiralty  and  maritime  jurisdiction')  and 
Section  8,  Article  I  ( Congress  may  make  necessary  and 
proper  laws  for  carrying  out  granted  powers),  in  the  absence 
of  some  controlling  statute  the  general  maritime  law  as  ac- 
cepted by  the  Federal  Court,  constitutes  part  of  our  national 
law  applicable  to  the  matters  within  admiralty  and  maritime 
jurisdiction,  also  that  'Congress  has  paramount  power  to 
fix  and  determine  the  •  maritime  law  which  shall  prevail 
throughout  the  country.'  And  we  held  that,  when  applied 
to  maritime  injuries,  the  New  York  Workmen's  Compensation 
Law  conflicts  with  the  rules  adopted  by  the  Constitution  and 
to  that  extent  is  invalid.  The  necessary  consequence  would  !»•; 
destruction  of  the  very  uniformity  in  respect  of  maritime  matters 
which  the  Constitution  was  designed  to  establish;  and  freedom  of 
navigation  between  the  States  and  with  foreign  countries  would  1  e 
seriously  hampered  and  impeded. 

"We  also  pointed  out  that  the  saving  clause  taken  from  the 
original  Judiciary  Act  had  no  application,  since,  at  most,  it 
only  specified  common  law  remedies,  whereas  the  remedy  pre- 
scribed by  the  compensation  law  was  unkown  to  the  common 
law  and  incapable  of  enforcement  by  the  ordinary  processes 
of  any  court.  Moreover,  if  applied  to  maritime  affairs,  the  statute 
would  obstruct  the  policy  of  Congress  to  encourage  investments  in 
ships. 

"In  Chelentis  v.  Luckenbach  S.  S.  Co.,  (June,  1918),  247  U.  S. 
372,  38  Sup.  Ct.  501,  62  L.  Ed.  1171,  an  action  at  law  seeking 
full  indemnity  for  injuries  received  by  a  sailor  while  on  ship- 
board, we  said: 

'Under  the  doctrine  approved  in  Southern  Pacific  Co.  v. 
Jensen,  no  State  has  power  to  abolish  the  well  recognized 
maritime  rule  concerning  measure  of  recovery  and  substitute 
therefor  the  full  indemnity  rule  of  the  common  law.  Such  n 

217 


§  46  WORKMEN'S  COMPENSATION  LAW 

substitution  would  distinctly  and  definitely,  change  or  add  to 
the  settled  maritime  law;  and  it  would  be  destructive  of  ike 
uniformity  and  consistency  at  which  the  Constitution  aimed 
on  all  subjects  of  a  commercial  character  affecting  the  intercourse 
of  the  States  with  each  other  or  with  foreign  states.' 

And,  concerning  the  clause,  'saving  to  suitors'  in  all  cases 
the  right  of  a  common  law  remedy  where  the  common  law  is 
competent  to  give  it,'  this: 

"In  Southern  Pacific  Co.  v.  Jensen,  we  definitely  ruled  that  it 
gave  no  authority  to  the  several  States  to  enact  legislation  which 
would  work  'material  prejudice  to  the  characteristic  features  of 
the  general  maritime  law  or  interfere  with  the  proper  harmony 
and  uniformity  of  that  law  in  its  international  and  interstate 
relations.'  Under  the  saving  clause  a  right  sanctioned  by 
the  maritime  law  may  be  enforced  through  any  appropriate 
remedy  recognized  at  common  law  but  we  find  nothing  therein 
which  reveals  an  intention  to  give  .the  complaining  party  an 
election  to  determine  whether  the  defendant's  liability  shall  be 
measured  by  common  law  standards  rather  than  those  of  the 
maritime  law. 

"Thus  we  distinctly  approved  the  view  that  the  original  sav- 
ing clause  conferred  no  substantive  rights  and  did  not  authorize 
the  States  so  to  do.  It  referred  only  to  remedies  and  to  the  ex- 
tent specified  permitted  continued  inforcement  by  the  state 
courts  of  rights  and  obligations  founded  on  maritime  law. 

"In  Union  Fish  Co.  v.  Erickson,  248  U.  S.  308,  39  Sup.  Ct. 
112,  63  L.  Ed.  261,  an  admiralty  cause,  a  master  sought  to  re- 
cover damages  for  breach  of  an  oral  contract  with  the  owner 
of  a  vessel  for  services  to  be  performed  principally  upon  the 
sea.  The  latter  claimed  invalidity  of  the  contract  under  a 
statute  of  California,  where  made,  because  not  in  writing  and 
not  to  be  performed  within  a  year.  We  ruled: 

'The  Circuit  Court  of  Appeals  correctly  held  that  this  contract 
was  maritime  in  its  nature  and  an  action  in  admiralty  thereon  for 
its  breach  could  not  be  defeated  by  the  statute  of  California  relied 
upon  by  the  petitioner.  In  entering  into  this  contract  the  par- 
ties contemplated  no  services  in  California.  They  were  making  an 
engagement  for  the  services  of  the  master  of  the  vessel,  the  duties/ 
218 


WHO  COMES  UNDER  THE  ACT.  §   46 

to  be  performed  in  the  waters  of  Alaska,  mainly  upon  the  sea.  The 
maritime  law  controlled  in  this  respect,  and  wag  not  subject  to  li'n- 
itation  because  the  particular  engagement  happened  to  be  made  in 
California.  The  parties  must  be  presumed  to  have  had  in  contem- 
plation the  system  of  maritime  law  under  which  it  was  made.  See 
also  The  Blackheath,  195  U.  S.  361,  365.  25  Sup.  Ct.  46,  47,  49 
L.  Ed.  236.' 

"As  the  plain  result  of  these  recent  opinions  and  the  earlier 
cases  upon  which  they  are  based,  we  accept  the  following  doc- 
trine: The  Constitution  itself  adopted  and  established,  as  part 
of  the  laws  of  the  United  States,  approved  rules  of  the  general 
maritime  law  and  empowered  Congress  to  legislate  in  respect  of 
them  and  other  matters  within  the  admiralty  and  maritime  juris- 
diction. Moreover,  it  took  from  the  States  all  power,  by  legisla- 
tion or  judicial  decision,  to  contravene  the  essential  purpose  of, 
or  to  work  material  injury  to,  characteristic  features  of  such  law 
or  to  interfere  with  its  proper  harmony  and  uniformity  in  its  in- 
ternational and  interstate  relations.  To  preserve  adequate  har- 
mony and  appropriate  uniform  rules  relating  to  maritime  matters 
and  bring  them  within  control  of  the  Federal  Government  was 
the  fundamental  purpose;  and  to  such  definite  end  Congress  was 
empowered  to  legislate  within  that  sphere. 

"Since  the  beginning.  Federal  courts  have  recognized  and  ap- 
plied the  rules  and  principles  of  maritime  law  as  something  dis- 
tinct from  laws  of  the  several  States — not  derived  from  or  de- 
pendent on  their  will.  The  foundation  of  the  right  to  do  this, 
the  purpose  for  which  it  was  granted,  and  the  nature  of  the  sys- 
tem so  administered,  were  distinctly  pointed  out  long  ago. 

"That  we  have  a  maritime  law  of  our  own,  operative  through- 
out the  United  States,  cannot  be  doubted.  *  *  *  One  thing,  how- 
ever, is  unquestionable ;  the  Constitution  must  have  referred  to  a 
system  of  law  coextensive  with,  and  operating  uniformly  in,  the 
whole  country.  It  certainly  could  not  have  been  the  intention  to 
place  the  rules  and  limits  of  maritime  law  under  the  disposal  and 
regulation  of  the  several  States,  as  that  would  have  defeated  the 
uniformity  and  consistency  at  which  the  Constitution  aimed  on 
all  subjects  of  a  commercial  character  affecting  the  intercourse 

219 


§  46  WORKMEN'S  COMPENSATION  LAWS. 

of  the  States  with  each  other  or  with  foreign  states.  The  Lotta- 
wamia,  21  Wall.  558,  574,  575  (22  L.  Ed.  654). 

"The  field  was  not  left  unoccupied;  the  Constitution  itself 
adopted  the  rules  concerning  rights  and  liabilities  applicable 
therein;  and  certainly  these  are  not  less  paramount  than  they 
would  have  been  if  enacted  by  Congress.  Unless  this  be  true  it 
is  quite  impossible  to  account  for  a  multitude  of  adjudications 
by  the  admiralty  courts.  See  Workman  v.  New  York  City,  179 
U.  S.  552,  557,  et  seq. ;  21  Sup.  Ct.  212,  45  L.  Ed.  314. 

"The  distinction  between  the  indicated  situation  created  by  the 
Constitution  relative  to  maritime  affairs  and  the  one  resulting 
from  the  mere  grant  of  power  to  regulate  commerce  without 
more,  should  not  be  forgotten.  Also  it  should  be  noted  that 
Federal  laws  are  constantly  applied  in  State  courts;  unless  in- 
hibited, their  duty  so  requires.  Constitution,  Art.  VI,  Clause  2; 
Second  Employer's  Liability  Cases,  223  U.  S.  55,  32  Sup.  Ct.  169, 
56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44.  Consequently  mere  reser- 
vation of  partially  concurrent  cognizance  to  such  courts  by  an 
act  of  Congress  conferring  an  otherwise  exclusive  jurisdiction 
upon  national  courts,  could  not  create  substantive  rights  or 
obligations  or  indicate  assent  to  their  creation  by  the  States. 

"When  considered  with  former  decisions  of  this  court,  a  satis- 
factory interpretation  of  the  Act  of  October  6,  1917,  is  difficult, 
perhaps  impossible.  The  Howell  (D.  C.)  275  Fed.  578,  and  Rohde 
v.  Grant  Smith  Porter  Co.  (D.  C.)  259  Fed.  304,  illustrate  some 
of  the  uncertainties.  In  the  first,  the  District  Court  in  New  York 
dismissed  a  libel,  holding  that  rights  and  remedies  prescribed  by 
the  Compensation  Law  of  that  State  are  exclusive  and  pro  tanto 
supersede,  the  maritime  law.  In  the  second,  the  District  Court 
of  Oregon  ruled  that  when  an  employee  seeks  redress  for  a  mari- 
time tort  by  an  admiralty  court,  rights  obligations  and  liabilities 
of  the  respective  parties  must  be  measured  by  the  maritime  law 
and  these  cannot  be  barred,  enlarged  or  taken  away  by  state 
legislation.  Other  difficulties  hang  upon  the  unexplained  words 
'workmen's  compensation  law  of  any  State.' 

"Moreover,  the  Act  only  undertook  to  add  certain  specified 
rights  and  remedies  to  a  saving  clause  within  a  code^section  con- 
ferring jurisdiction.  We  have  held  that  before  the  amendment 
220 


WHO  COMES  UNDER  THE  ACT.  §    46 

and  irrespective  of  that  section,  such  rights  and  remedies  did 
not  apply  to  maritime  torts  because  they  were  inconsistent  with 
paramount  Federal  law — within  that  field  they  had  no  existence. 
Were  the  added  words  therefore  wholly  ineffective?  The  usual 
function  of  a  saving  clause  is  to  preserve  something  from  im- 
mediate interference — not  to  create;  and  the  rule  is  that  expres- 
sion by  the  legislature  of  an  erroneous  opinion  concerning  the 
law  does  not  alter  it.  Endlich,  Interpretation  of  Statutes,  Sec. 
372. 

"Neither  branch  of  Congress  devoted  much  debate  to  the  Act 
under  consideration — altogether,  less  than  two  pages  of  the  Rec- 
ord (65  Cong.  pp.  7605,  7843).  *  *  *  Having  regard  lo  all  these 
things  we  conclude  that  Congress  undertook  to  permit  applica- 
tion of  Workmen's  Compensation  Laws  of  the  several  States  to 
injuries  within  the  admiralty  and  maritime  jurisdiction;  and  to 
save  such  statutes  from  the  objections  pointed  out  by  Southern 
Pacific  Co.  v.  Jensen.  It  sought  to  authorize  and  sanction  action 
by  the  States  in  prescribing  and  enforcing,  as  to  all  parties  cora- 
cerned,  rights,  obligations,  liabilities  and  remedies  designed  to 
provide  compensation  for  injuries  suffered  by  employees  engaged 
in  maritime  work. 

"And  so  construed,  we  think  the  enactment  is  beyond  the  power 
of  Congress.  Its  power  to  legislate  concerning  rights  and  liabil- 
ities within  the  maritime  jurisdiction  and  remedies  for  their  en- 
forcement, arises  from  the  Constitution,  as  above  indicated.  The 
definite  object  of  the  grant  was  to  commit  direct  control  to  the 
Federal  Government;  to  relieve  maritime  commerce  from  un- 
necessary burdens  and  disadvantages  incident  to  discordant 
legislation ;  and  to  establish,  so  far  as  practicable,  harmonious 
and  uniform  rules  applicable  throughout  every  part  of  the  Union. 

"Considering  the  fundamental  purpose  in  view  and  the  definite 
end  for  which  such  rules  were  accepted,  we  must  conclude  that 
in  their  characteristic  features  and  essential  international  and 
interstate  relations,  the  latter  may  not  be  repealed,  amended  or 
changed  except  by  legislation  which  embodies  both  the  will  *nd 
deliberate  judgment  of  Congress.  The  subject  was  intrusted  tn 
it  to  be  dealt  with  according  to  its  discretion — not  for  delegation 
to  others.  To  say  that  because  Congress  could  have  enacted  a 

221 


§  46  WORKMEN'S  COMPENSATION  LAW 

compensation  act  applicable  to  maritime  injuries,  it  could  author- 
ize the  States  to  do  so  as  they  might  desire,  is  false  reasoning. 
Moreover,  such  an  authorization  would  inevitably  destroy  the 
harmony  and  uniformity  which  the  Constitution  not  only  con- 
templated but  actually  established — it  would  defeat  the  very  pur- 
pose of  the  grant.  See  Sudden  &  Christenson  Industrial  Accident 
Commission,  (Cal.)  188  Pac.  803. 

"Congress  cannot  transfer  its  legislative  power  to  the  States — by 
nature  this  is  non-delegable.  In  re  Rahrer,  140  U.  S.  545,  560; 
11  Sup.  Ct.  865,  35  L.  Ed.  572;  Field  v.  Clark,  143  U.  S.  649, 
692;  12  Sup.  Ct.  495,  36  L.  Ed.  294;  Buttfield  v.  Stranahan, 
192  U.  S.  470,  496,  24  Sup.  Ct.  349,  48  L.  Ed.  525 ;  Butte  City 
Water  Co.  v.  Baker,  196  U.  S.  119,  126,  25  Sup.  Ct.  211,  49  D, 
Ed.  409;  Interstate  Com.  Comm.  v.  Goodrich,  Transit  Co.,  224 
U.  S.  194,  214;  32  Sup.  Ct.  436,  56  L.  Ed.  729. 

"In  Clark  Distilling  Co.  v.  Western  Md.  Ry.  Co.,  242  U.  S.  311, 
37  Sup.  Ct.  180,  61  L.  Ed.  326,  L.  R,  A.  1917B,  1218,  Ann.  Caa. 
1917B,  845,  notwithstanding  the  contention  that  it  violated  the 
Constitution — Art.  I,  Sec.  8,  Clause  3 — this  court  sustained  an 
act  of  Congress  which  prohibited  the  shipment  of  intoxicating 
liquors  from  one  State  into  another  when  intended  for  use  con- 
trary to  the  latter 's  laws.  Among  other  things,  it  was  there  stated 
that— 

'The  argument  as  to  delegation  to  the  States  rests  upon  a  mere 
misconception.  It  is  true  the  regulation  which  the  Webb-Kenyon 
Act  contains  permits  state  prohititions  to  apply  to  movements  of 
liquor  from  one  state  into  another,  but  the  will  which  causes  the 
prohibitions  to  be  applicable  is  that  of  Congress,'  i.  e.,  Congress 
itself  forbade  shipments  of  a  designated  character. 

And  further: 

'The  exceptional  nature  of  the  subject  here  regulated  it  the 
basis  upon  which  the  exceptional  power  exerted  must  rest,'  i. 
e.,  different  considerations  would  apply  to  innocuous  articles  of 
commerce. 

"The  reasoning  of  that  opinion  proceeded  upon    the  postulate 
that  because  of  the  peculiar  nature  of  intoxicants  which  gives 
enlarged  power  cpncerning  them,   Congress  might  go  so  far  as 
222 


WHO  COMES  UNDER  THE  ACT.  §   46 

entirely  to  prohibit  their  transportation  in  interstate  commerce. 
The  state  did  less. 

"We  can  see  no  reason  for  saying  that  although  Congress  in 
view  of  the  nature  and  character  of  intoxicants  had  a  power  to 
forbid  their  movement  in  interstate  commerce,  it  had  not  the 
authority  to  so  deal  with  the  subject  as  to  establish  a  regulation 
(Which  is  what  was  done  by  the  Webb-Kenyon  Law)  making  it 
impossible  for  one  state  to  violate  the  prohibitions  of  the  laws  of 
another  through  the  channels  of  interstate  commerce.  Indeed,  we 
can  see  no  escape  from  the  conclusion  that  if  we  accept  the  propo- 
sition urged,  we  would  be  obliged  to  announce  the  contradiction 
in  terms  that  because  Congress  had  exerted  a  regulation  lesser  in 
power  than  it  was  authorized  to  exert,  therefore  its  action  was 
void  for  excess  of  power. 

See  Delameter  v.  South  Dakota,  205  U.  S.  93,  97,  27  Sup.  Ct. 
447,  51  L.  Ed.  724,  10  Ann.  Gas.  753. 

"Here  we  are  concerned  with  a  wholly  different  Constitutional 
provision — one  which  for  the  purpose  of  securing  harmony  and 
uniformity,  prescribes  a  set  of  rules,  employs  Congress  to  legis- 
late to  that  end,  and  prohibits  material  interference  by  the  States. 
Obviously,  if  every  State  may  freely  declare  the  rights  and  lia- 
bilities incident  to  maritime  employment,  there  will  at  once  arise  the 
confusion  and  uncertainty  which  framers  of  the  Constitution  both 
foresaw  and  undertook  to  prevent. 

"In  the  Hamilton,  207  U.  S.  398,  28  Sup.  Ct.  133,  52  L.  Ed. 
264,  an  admiralty  proceeding,  effect  was  given,  as  against  a  ship 
registered  in  Delaware,  to  a  statute  of  that  State  which  permitted 
recovery  by  an  ordinary  action  for  fatal  injuries,  and  the  power 
of  a  State  to  supplement  the  maritime  law  to  that  extent  was 
recognized.  But  here  the  state  enactment  prescribes  exclusive 
rights  and  liabilities,  undertakes  to  secure  their  observance  by 
heavy  penalties  and  onerous  conditions,  and  provides  novel 
remedies  incapable  of  enforcement  by  an  admiralty  court.  See 
N.  Y.  Cent.  R.  R.  Co.  v.  White,  243  U.  S.  188,  37  Sup.  Ct.  247S 
61  L.  Ed.  667,  L.  R.  A.  1917D,  LM  Ann.  Cas.  1917D,  629  N.  Y. 
Cent.  R.  R.  v.  Winfield,  244  U.  S.  147,  37  Sup.  Ct.  546,  61  L. 
Ed.  1045,  L.  R.  A.  1918C,  439,  Ann.  Cas.  1917D,  1139;  Southern 

223 


§  47  WORKMEN'S  COMPENSATION  LAWS.  . 

Pacific  Co.  v.  Jensen,  supra.  The  doctrine  of  The  Hamilton 
may  not  be  extended  to  such  a  situation. 

"The  judgment  of  the  court  below  must  be  reversed  and  the 
cause  remanded  with  directions  to  take  further  proceedings  not 
inconsistent  with  this  opinion. ' ' 18 

Whether  a  tort  is  exclusively  maritime  in  nature  is  to  be  deter- 
mined by  the  locality  of  the  act,  and  the  fact  that  one  is  injured 
in  the  performance  of  a  maritime  contract  does  not  in  itself 
determine  the  character  of  the  tort.  So  where  a  person  was 
knocked  from  a  wharf  by  the  movement  of  a  pile  of  lumber  and 
struck  upon  logs  and  timbers  in  the  river  and  there  was  no  at- 
tempt to  show  that  his  death  was  the  immediate  result  of  being 
struck  by  the  lumber  on  the  wharf,  it  could  not  be  said  as  a  mat- 
ter of  law  that  the  tort  was  maritime  so  as  to  prevent  recov- 
ery under  the  Employers'  Liability  Act  or  Workmen's  Compensa- 
tion Act  of  California.19 

§  47.  Extra  Territorial  Application  of  Acts. — Many  of  the 
American  Acts  expressly  or  impliedly  provide  that  they  Bhall 
apply  to  injuries  received  outside  the  state  if  the  contract  of 
employment  was  made  in  the  state.  Others  omit  all  reference  to 
extra  territorial  application,  and  still  others  expressly  provide 
that  the  act  shall  not  apply  to  injuries  received  outside  the  state. 
A  substantial  difficulty  presents  itself  as  to  those  acts  whicli 
expressly  state  that  "this  act  shall  apply  to  all  injuries  received 
in  this  state,  regardless  of  where  the  contract  of  employment 
was  made,  and  also  to  all  injuries  received  outside  of  this  state 
under  contracts  of  employment  made  in  this  state,  unless  the 
contract  of  employment  in  any  such  case  shall  otherwise  provide." 

It  will  be  noticed  that  such  provisions  deny  jurisdiction  to  the 
acts  of  other  states  over  injuries  received  in  "this  state"  if  the 
contract  of  employment  was  made  in  some  other  state,  but  give 

18.  Knickerbocker  Ice  Co.  v.  Stewart,  252  U.  S.  — ,  40  Sup.  Ct.  R.  438, 
6  W.  C.  L.  J.  119;    Berg  v.  Philadelphia  &  R.  Ry.  Co.,  266  F§d.  591,  6  W.  C. 
L.  J.  621;  Lund  v.  ^rifflth  &  Sprague,  —  Wash.  — ,  183  Pac.  123,  4  W.  C. 
L.  J.  654;  Lawson  v.  N.  Y.  &  P.  R.  S.  S.  Co.,  —  La.  — ,  86  So.  815  (1921); 
Dorman's  Case,  —  Mass.  — ,  129  N.  E.  352,  (1921). 

19.  Rorvik  v.  N.  Pac.  Lbr.  Co.  (1921),  —  Ore.  — ,  195  Pac.  163. 
224 


WHO  COMES   UNDER  THE   ACT.  §    47 

themselves  jurisdiction  in  similar*  cases.  The  question  therefore 
arises  as  to  which  law  applies  where  a  contract  of  employment 
is  made  in  a  state  whose  act  contains  the  above  provisions  but 
the  injury  occurs  in  another  state  whose  act  has  a  similar  pro- 
vision. 

It  would  appear,  therefore,  in  the  case  of  an  employee  injured  in 
Missouri,  in  the  performance  of  a  contract  made  in  Indiana,  that 
he  would  have  the  right  at  his  option  to  proceed  against  his  em- 
ployer either  under  the  Missouri  Act,  or  the  Indiana  Act,  or  per- 
haps even  under  both,  a:;  in  reply  to  the  contention  that  to  give 
an  Act  extra  territorial  operation  might  permit  a  double  recov- 
ery, the  New  Jersey  Court  said :  ' '  Recovery  of  Compensation  in 
two  states  is  no  more  illegal,  and  is  not  necessarily  more  unjust, 
than  recovery  upon  two  policies  of  accident  or  life  insurance."20 
To  thus  allow  double  recovery,  is  in  the  author's  opinion  bad 
policy  and  contrary  to  one  of  the  fundamental  principles  of 
Workmen's  Compensation,  in  that  if  the  employee  were  to  re- 
ceive more  compensation  while  disabled  than  while  working  the 
temptation  to  malinger  and  prolong  his  period  of  disability  would 
be  great.  In  addition  this  would  be  penalizing  the  employer  for 
his  industry  in  extending  his  business  to  other  states.  Not  to 
mention  questions  of  interstate  comity  and  res  adjudicata.  The 
author  prefers  in  such  cases  as  a  matter  of  comity,  the  theory  of 
concurrent  jurisdiction. 

While  elective  acts  are  by  most  American  authorities  consider 
ed  contractual,  in  that  they  become  part  of  the  contract  of  em- 
ployment and  are  held  to  follow  the  employee  to  the  place  of  per- 
formance of  the  contract, "  regardless  of  express  language  to 

20.    Rounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  371,  94,  Atl.  392. 

22.  Gooding  v.  Ott,  77  W.  Va.  487,  87  S.  E.  862;  State  v.  District 
Court,  139  Minn.  305,  168  N.  W.  177,  2  W.  C.  L.  J.  524;  Hagenbach  T. 
Leppert,  64  Ind.  App.  — ,  177  N.  E.  531.  1  W.  C.  L.  J.  64;Shanahan  v. 
Monarch  Engineering  Co.,  219  N.  Y.  469.  114,  N.  E.  795;  Jenkins  v. 
Hogan  &  Sons,  177  App.  Div.  36,  163  N.  Y.  S.  707;  Industrial  Comm.  v. 
Aetna  Life  Ins.  Co.,  64  Colo.  480,  174  Pac.  589,  2  W.  C.  L.  J.  759;  Grim- 
mell  v.  Wilkinson,  39  R.  I.  447,  98  Atl.  103;  Pierce  v.  Bekins  Van  & 

225 

W.  C.~ 15 


§  47  WORKMEN'S  COMPENSATION  LAWS. 

that  effect  in  the  act,  yet  the  right  to  compensation  rests  primar- 
ily, according  to  some  authorities,  on  the  statute, 23  rather  than 
on  the  contract  of  employment.  So  the  New  Jersey  Act  has  been 
held  to  apply  where  the  contract  of  employment  was  made  in 
another  state  though  it  required  services  to  be  performed  in  New 
Jersey  where  the  employee  was  injured,  the  court  raying:  "The 
Workman's  Compensation  Act  indicates  a  public  policy  of 
the  state,  which  will  be  enforced  even  as  against  a  contract 
made  in  another  sftate."24  It  also  appears  logical  that  since 
the  compensation  acts  are  considered  an  exercise  of  the  police 
power  of  the  states,  that  the  compensation  act,  if  any,  of  the 
state  where  the  accident  occurred,  should  apply  rather  than 
the  place  of  the  making  of  the  employment  contract.25  On  these 
theories,  as  well  as  under  the  express  language  of  the  Act,  the 
employee  injured  in  Missouri,  though  having  contracted  for  his 
employment  in  Indiana,  would  have  the  right  to  obtain  compen- 
sation under  the  Missouri  Compensation  Act.  (See  Douthwright 
v.  Chaplin,  91  Conn.  524,  100  Atl.  97  Ann.  Gas.  1917E  512).  But 
the  questions  that  then  confront  him  are,  can  he  obtain  service 
on  his  employer  in  Missouri,  can  he  sue  his  employer  for  damages 
at  common  law  because  the  employer  may  not  have  insured  his 
risk  under  the  Missouri  Act,  or  may  he  go  back  to  Indiana,  obtain 
service  on  his  employer  and  enforce  the  Missouri  Act  before  some 
Indiana  Tribunal,  or  must  he  in  Indiana  under  these  facts,  proceed 
under  the  Indiana  Act? 

Unfortunately  these  and  many  related  questions  will  have  to 
be  left  for  the  most  part  to  future  determination  by  the  courts 
and  legislative  amendments  to  existing  Statutes,  as  the  decisions 

Storage  Co.,  --  la.  — ,  172  N.  W.  191,  4  W.  C.  L.  J.  78;  Anderson  v. 
Miller  Scrap  Iron  Co.  et  al.,  169  Wis.  106,  170  N.  W.  275,  3  W.  C.  L.  J. 
389. 

23.  North  Alaska  Salmon  Co.  v.  Pillsbury,  174  Cal.   1,  162  Pac.  93. 

24.  American  Radiator  Co.  v.   Rogge,  86   N.  J.  Law,    436,  92   Atl.  85, 
Affirmed  in  87  N.  J.  Law,  314,  93  Atl.  1083;  Davidheiser  v.  Hay  Foundry 
•&  Iron  Works,  87  N.  J.  Law  688,  94  Atl.  309;  West  Jersey  Trust  Co.,  v. 
Philadelphia  &  R.  Ry.  Co.,  88  N.  J.  Law,  102,  95  Atl.  753. 

25.  Perlis  v.   Lederer,  180  App.  Div.  429,  178  N.  Y.  S.  449,  5  W.  C.  L,! 
J.  108;  Union  Bridge  &  Const.  To.  v.  Industrial  Comm.,  287  111.  396,  122 
N.  E.  609,  3  W.  C.  L.  J  690. 

226 


WHO  COMES  UNDER  THE  ACT.  §   47 

to  date  concern  themselves  principally  with  the  question  of  whether 
or  not  the  legislature  of  any  State  intended  the  compensation  act 
of  that  State  to  have  extraterritorial  effect,26  and  the  results  of 
the  affirmative  or  negative  determination  of  that  question. 

Under  the  decisions  it  is  conceded  that  the  State  has  power 
to  pass  an  act  that  will  apply  to  injuries  suffered  by  an  employee 
in  another  state.27  Under  such  provision  of  the  California  Act 
it  was  held  that  the  term  "resident"  applies  only  to  citizens  or  to 
aliens  domiciled  within  the  state.28  Though  when  the  question 
was  first  raised  in  America,  our  courts  and  commissions  were 
inclined  to  follow  the  decisions  of  the  British  Courts  to  the  effect 
that,  except  as  to  seamen  for  whom  express  provision  is  made,  the 
English  Act  applies  only  within  the  territorial  limits  of  the  United 
Kingdom.20 

Where  a  contract  was  entered  into  in  New  York  for  services 
to  be  performed  wholly  in  Pennsylvania,  the  court  said;  "There 
is  no  doubt  that  a  contract  made  within  the  state  of  New  York 
for  services  to  be  performed  wholly  in  a  sister  state  is  without 
the  police  power  of  the  state  of  New  York  and  does  not  give  a 

26.  Gould  v.  Sturdevant   (In  re  American  Mut.  L.  Ins.  Co.),  215  Mass. 
480,  102  N.  E.,  693  4  N.  C.  C.  A.  60;  Kennerson  v.  Thames  Towboat  Co., 
89  Conn.  367,  L.  R.  A.  (1916),  A.  436.    94  All.  372;  Matter  of  Post  v.  Burg- 
er &  Gohlke.  216  N.  Y.  544,  111  N.  E.  351,  10  N.  C.  C.  A.  888;   American 
Radiator  Co.  v.  Rogge,  86  I*.  J.  Law  436;  92  Atl.  85,  7  N.  C.  C.  A.  144; 
Bradbury's  Annotation  9  N.  C.  C.  A.  919. 

27.  Gould  v.  Sturdevant  (In  re  American  Mutual  Liability    Ins.  Co.), 
215  Mass.  480;  102  N.  E.  693;  4  N.  C.  C.  A.    60;    Mulhall  v.   Fallen,  176 
Mass.  266,  57  N.  E.  386:  North  Alaska  Salmon  Co.  v.  Pillsbury,  174  Cal.  1, 
162  Pac.  93;  Pierce  v.  Bekins  Van  &  Storage  Co.  (la.),  172  N.  W.  191,  4  W. 
C.  L.  J.  78;  Gooding  v.  Ott,  77  W.  Va.  487,  87,  S.  E.  862;  Post  v.  Burger  & 
Golke,  216  N.  Y.  544,  111  N.  E.  351,  Ann.  Cas.  1916B  158;  Foughty  v.  Ott, 
80  W.  Va.  88,  92  S.  E.  143,  15  N.  C.  C.  A.  919;  Jenkins  v.  T.  Hogans  & 
Sons,  Inc.,  177  N.  Y.  App.  Div.    36,  163  N.  Y.  S.  707;  Deeny  v.  Wright  & 
Cobb  Co.,  36  N.  J.  L.  J.  121;  Foley  v.  Home  Rubber  Co.,  89  N.  J.  L.  474, 
99,  Atl.  624,  13  N.  C.  C.  A.  1014. 

28.  Quong  Ham  Wah  Co.  v.  Indus.  Comm.,  —  Cal.  — ,  192  Pac.  1021. 
7  W.  C.  L.   J.  12. 

29.  Tomalin  v.  Pearson  &  Son   (1909)  2  B.  W.  C.  C.  1,  100  L.  T.  N.  S. 
685;  Schwartz  India  Rubber  etc.  Co.,  5  B.  W.  C.  C.  390,  106  L.  T.  N.  S. 
706;  Hicks  v.  Maxton.  1  B.  W.  C.  C.  150. 

227 


§  47  WORKMEN'S  COMPENSATION  LAW 

right  to  compensation  under  our  Workmen's  Compensation  Law. 
(Consol.  Laws.  c.  67.  )"30 

An  employee  injured  in  Idaho  while  engaged  in  extrahazard- 
ous  work  and  who  brought  his  action  in  Washington,  would  b<? 
bound  by  the  Washington  Law,  in  the  absence  of  pleading 
the  Idaho  law,  and  as  the  Washington  law  brought  him  under 
the  Compensation  Act,  he  could  not  maintain  an  action  at  law.31 

In  a  leading  case  involving  an  injury  sustained  outside  the 
state  of  Massachusetts  the  court  said:  "In  the  absence  of  un- 
equivocal language  to  the  contrary  it  is  not  to  be  presumed  that 
statutes  respecting  this  matter  are  designed  to  control  conduct  or 
fix  the  rights  of  parties,  beyond  the  territorial  limits  of  the  state."  :!2 
Before  the  Illinois  act  was  amended  to  make  it  compulsory  as 
to  extrahazardous  employments  the  Supreme  Court  of  Illinois 
said:  "The  Compensation  Act  has  been  held  on  account  of  its 
elective  features,  to  create  a  contract  obligation,  but  the  obliga- 
tion so  created  is  that  the  employer  will  provide  and  pay  com- 
pensation according  to  the  provisions  of  the  act  and  he  does  not 
agree  to  provide  and  pay  compensation  for  injuries  not  included 
within  the  Act  (Citing  In  re  Gould,  215  Mass.  480).  The  de- 
cision was  within  the  rules  that  the  act  being  elective  in  its 
nature  every  provision  of  the  act  became  a  part  of  the  contract, 
and  the  employer  became  bound  to  pay  according  to  the  terms  of 
the  act.  The  Workmen's  Compensation  Act  of  this  state  is  re- 
medial in  its  nature  and  should  be  liberally  construed  to  carry 
out  its  beneficent  object,  but  there  is  no  provision  of  the  act 
which  can  be  construed  to  authorize  compensation  for  an  injury 
occurring  outside  of  the  State."33  In  contrast,  Bradbury  in  the 

30.  Perils  v.  Lederer   (N.  Y.)    178  N.  Y.  S.  449,  5  W.  C.  L.  J.  108;  In 
another  New  York  district  it  was  held  to  the  contrary  by  the  Municipal 
Court  of  the  City  of  New  York  in  the  case  of  State  Ind.  Com'n.  of  N.  Y. 
v.  Barene  et  al.t  177  N.  Y.  S.  689.  4  W.  C.  L.  J.  630. 

31.  Freyman  v.  Day  et  al.  (Wash.),  182   Pac.   940,   4  W.  C.  L.  J.  652. 

32.  '  In  re  Gould,  215  Mass.  480,  4  N.  C.  C.  A.  60,  102  N.  E.  693,  Ann. 
Gas.  1914D,  372;   Cogliano  v.  Ferguson  (Mass.)  117  N.  E.  45. 

33.  Union  Bridge  &  Construction  Co.  v.   Industrial   Comm.  et  al.,  287 
111.  396,  122  N.  E.  609,  3  W.  C.  L.  J.  690.  But  see  Friedman  Mfg.  Co.  v. 
Ind.  Comm.,  284  111.  554,  120  N.  E.  460,  3  W.  C.  L.  J.  21. 

228 


WHO  COMES  UNDER  THE  ACT.  §   47 

3rd  edition  of  his  work,  makes  the  following  statement,  p.  86:  "In 
those  slates  where  compulsory  acts  are  in  force  it  may  perhaps 
be  said  that  there  is  no  contract  between  the  employer  and  the 
employee,  but  that  a  specific  duty  is  imposed  upon  the  employer 
by  force  of  the  statute."  The  following  quotation  of  the  Supreme 
Court  of  Connecticut,  which  quotes  the  same  author,  is  also  per- 
tinent: "Where,  as  with  us,  the  determination  of  the  award 
is  committed  to  a  board  or  commission  under  a  specified  pro- 
cedure, there  will  be  serious  obstacles  to  the  enforcement  of  the 
contract  in  a  foreign  jurisdiction.  Bradbury's  Workmen's  Com- 
pensation Law  (Ed.  1914)  p.  52.  If  it  should  be  necessary  to  so 
rule,  no  hardship  would  result.  The  parties  in  interest  would  be 
relegated  to  the  place  where  they  had  elected  to  make  their  con- 
tract and  no  questions  of  conflict  of  laws  could  arise.  At  the  base 
of  this  question  is  the  character  of  the  compensation.  Mr.  Brad- 
bury, repudiating  his  earlier  view,  stoutly  maintains  that,  if  the 
act  be  contractual,  the  contracts  arising  will,  unless  a  contrary 
intent  appears,  be  found  to  cover  injuries  without  as  well  as  with- 
in the  state.  We  think  his  later  conclusion  sound  and  one  which 
will  prove  beneficial  alike  to  employer  and  employee."3* 

Contrast  this  again  with  the  following  from  the  opinion  of  the 
court  in  the  case  of  Johnson  v.  Nelson,  128  Minn.  158,  150  N.  W. 
620,  where  the  employee  contracted  for  his  employment  in  Minne- 
sota, but  was  injured  in  Wisconsin,  where  he  and  his  employer 
had  accepted  the  compensation  Act,  and  he  then  brings  this  ac- 
tion for  common  law  damages  in  Minnesota. 

"But  although  plaintiff's  cause  of  action  is  predicated  upon 
his  relation  of  a  servant  to  defendant,  and  the  latter 's  obligations 
as  master  it  is  nevertheless  one  in  tort.  As  to  such  actions,  the 
law  is  well  settled  that  the  liability  or  right  of  action  is  determin- 
ed by  the  law  of  the  place  where  the  injury  is  inflicted  without 
regard  to  the  law  of  the  forum  or  the  law  of  the  place  where  the 
contract  is  made.  (Authorities  cited.)  This  eliminates  from  con- 
sideration the  law  of  the  place  where  the  contract  of  employment 
was  made  in  determining  what  redress  plaintiff  may  have  for  the 

34.  Kennerson  v.  Thames  Towboat  Co.,  8S  Conn.  367;  94  Atl.  372  L. 
R.  A.  (1916)  A.  436  n. 

229 


§  47  WORKMEN'S  COMPENSATION  LAWS. 

injuries  received  when  working  for  defendant  in  Wisconsin. 
Plaintiff  must  resort  to  the  law  as  it  is  in  that  State  to  find  his 
right  to  relief." 

It  .was  said  in  Deeny  v.  Wright  &  Cobb  Lighterage  Co.,  36  N. 
J.  L.  J.  121,  7  N.  C.  C.  A.,  note  144:  ''The  statute  can  have  no 
extraterritorial  effect,  but  it  can  require  a  contract  to  be  made, 
by  two  parties  to  a  hiring,  that  the  contract  shall  have  an  extra- 
territorial effect.  The  contract  is  binding  on  the  employee  him- 
self and  upon  the  employer,  and  it  is  conclusively  presumed  that 
the  parties  have  accepted  the  provisions  of  section  2,  and  have 
agreed  to  be  bound  thereby.  *  *  *  It  would  seem  that  the  rea- 
sonable construction  of  the  statute  is,  that  it  writes  into  the  con- 
tract of  employment  certain  additional  terms.  The  cause  of  ac- 
tion of  the  petitioner  is  ex  contractu.  The  lex  loci  contractus 
governs  the  construction  of  the  contract  and  determines  the  legal 
obligations  arising  from  it." 

It  has  been  held  in  a  New  York  case  that:  "When  the  statute 
creating  the  right  provides  an  exclusive  remedy,  to  be  enforced 
in  a  particular  way,  or  before  a  special  tribunal,  the  aggrieved 
party  will  be  left  to  the  remedy  given  by  the  statute  which  creat- 
ed the  right."35  But  in  the  case  of  an  Alabama  statute  which  pro- 
vided that  rights  thereunder  could  be  enforced  in  the  courts  of 
Alabama  only,  and  a  Georgia  court  took  jurisdiction  of  a  case 
under  the  Alabama  statute  this  procedure  was  upheld  by  the 
Supreme  Court  of  the  United  States.36  Since  the  powers  and 
jurisdiction  of  the  various  and  special  tribunals,  courts,  boards, 
commissions  etc.,  through  which  the  compensation  acts  of  the 
different  states  are  administered  differ  in  more  or  less  material 
respects  in  every  instance,  it  will  be  seen  that  the  doctrine  an- 
nounced in  the  New  York  case  presents  a  very  practical  problem 
and  one  which  cannot  be  easily  solved  by  the  employer  who  does 
business  in  several  states,  electing  to  come  under  the  compensa- 

35.  Loomis  v.  Lehigh  Valley  R.  R.  Co.,  208  N.  Y.  312;    101  N.  E.  907; 
Lehman  v.  Ramo  Films  Inc.,  92  Misc.  418,  155  Supp.  1032;   McCarthy  v. 
Me  Alister  Steamboat  Co.,  94  Misc.  692,  158  Supp.  563. 

36.  Tennessee  Coal  Co.  v.  George.  233  U.  S.  354,  34  Sup.  Ct.  587;  55 
L.  Ed.  997. 

230 


WHO  COMES  UNDER  THE  ACT.  §    47 

tion  act  of  each  state  if  under  its  provisions  he  is  given  that  op- 
tion. This  question  did  not  arise  under  the  common  law  system 
as  the  regular  courts  of  each  state  could  take  jurisdiction. 

It  was  held  in  an  Indiana  case  that  a  circus  company  not  hav- 
ing given  any  notice  of  non-acceptance  of  the  act,  it  was  held 
liable  for  the  death  of  an  employee,  although  the  contract  of  em- 
ployment made  in  another  state,  provided  that  the  liability  of 
the  parties  should  be  governed  by  the  laws  of  the  state  where 
the  contract  was  made.37 

Where  an  insurer  contracted  to  pay  in  the  manner  provided 
by  the  laws  of  such  states  as  were  in  force  at  the  time  the  policy 
took  effect,  or  any  subsequent  amendments  thereto,  the  insurer 
was  held  liable  for  an  injury  to  an  employee  injured  in  Louisiana 
under  Texas  employment  where  an  amendment  made  the  act  ap- 
plicable to  employees  hired  in  Texas  though  the  injury  occurred 
outside  of  the  state.88 

It  has  been  held  that  where  an  accident  occurred  in  a  compen- 
sation state  having  a  presumptive  election  clause  and  the  em- 
ployment contract  was  made  in  a  state  having  no  compensation 
act,  the  compensation  law  of  the  state  of  the  accident  applied.89 
It  was  held  that  one  hired  in  Missouri  to  work  in  a  smelter  in 
Illinois,  which  work  is  extra  hazardous,  knowing  the  character 
of  the  work  placed  him  under  the  Illinois  Compensation  Act,  was 
bound  by  it  and  could  not  sue  in  Missouri  under  the  common  law/* 
But  in  the  case  of  an  accident  happening  in  a  compensation  state, 
and  the  contract  was  made  elsewhere,  or  in  the  noncompensation 
state,  where  the  action  is  brought,  it  was  held  that  the  compen- 

37.  Carl  Hagenbeck  &  Great  Wallace  Show  Co.  v.  Randall,  —  Ind.  App. 
— ,  (1920),  126  N.  E.  501,   504,  5  W.  C.  L.  J.   827.  830;    Smith  v.  Heine 
Safety  Boiler  Co.,  --   Me.   — ,   (1921),  112  Atl.  516. 

38.  Home  Life  &  Ace.  Co.  v.  Orchard  —  Tex.  Civ.  App.  — ,  (1921),  227 
S.  W.  705. 

39.  Douthwright  v.  Chaplin.  91  Conn.  524,  100  Atl    97,  15  N.  C.  C.  A. 
870,  Ann.  Cass.  1917E.  512;    American  Radiator  Co.  v.  Rogge,  86  N.  J.  Law 
436,  92  Atl.   85,   7   N.  C.  C.  A.  144. 

40.  Mitchell    v.    St.    Louis  Smelting  &  Refining  Co.   (Mo.).  215  S.  W. 
506,  5  W.  C.  L.  J.  82. 

231 


§  47  WORKMEN'S  COMPENSATION  LAWS. 

sation  act  of  the  state  where  the  accident  occurred  would  not  be 
enforced.41 

In  the  case  of  a  German  subject  employed  in  a  German  port, 
injured  while  the  ship  was  in  New  York  Harbor,  it  was  held  that 
the  plaintiffs  exclusive  remedy  was  under  the  German  Work- 
men's Compensation  Act.42 

Where  the  deceased  was  employed  in  New  Jersey  by  a  New 
Jersey  corporation,  and  had  accepted  the  compensation  act  of 
that  state,  it  was  held  that  an  action  could  not  be  maintained 
in  New  York,  for  his  death  occurring  in  New  Jersey  though  serv- 
ice could  not  be  had  upon  the  Corporation  to  enable  the  claimants 
to  proceed  under  the  act  in  New  Jersey. 43  It  has  been  held  that 
where  an  injured  person  was  induced  to  invoke  the  New  Jersey 
statute,  under  which  an  award  was  made,  and  the  insurer  made 
some  payments  he  was  not  thereby  deprived  of  his  rights  under 
the  New  York  Law;  the  insurer  merely  being  credited  with  the 
amount  paid;44  that  where  a  claimant  received  a  letter  in  New 
York,  offering  him  employment  in  Pennsylvania,  and  made  no 
response,  but  soon  went  there  and  entered  into  a  written  con- 
tract of  employment,  and  was  there  injured,  he  is  not  entitled  to 
an  award  under  the  New  York  law  ;45  that  the  New  York  Act 
does  not  apply  to  an  employer  who  moved  his  plant  from  the 
state  before  the  passage  of  the  act,  retaining  only  a  sales  agency 
in  the  state,  although  the  employee  who  was  injured  contracted 
with  the  said  employer,  while  his  plant  was  in  New  York  ;46  that 

41.  Pensabene    v.  Auditore  Co.,  155  App.  Div.    368,    140    Supp.  268; 
Hamm  v.  Rockwood  Sprinkler  Co.,  88  N.  J.  Law,  564,  97  Atl.  730;    Royal 
Indemnity  Co.  v.  Platt  &  Washburn  Refining  Co.,  98  Misc.  Rep.  631,  163 
N.  Y.  S.  197. 

42.  Schweitzer  v.  Hamburg  American  Line,  78   Misc.   448,   138   Supp. 
944.    But  see  Kruse  v.  Pillsbury,  174  Gal.  222,  162  Pac.  891. 

43.  Verdicchio  v.  McNab,  etc.  Mfg.,  Co.,  178  App.  Div.  48,  164  N.  Y.  S. 
290,  15  N.  C.  C.  A.  874. 

44.  Gilbert  v.  Des  Lauriers   Column  Mould  Co.,  180  App.  Div.  59,  167 
N.  Y.  S.  274,  1  W.  C.  L.  J.  232,  15  N.  C.  C.  A.  878,  926. 

45.  Thompson  v.  Foundation   Co.,   188  App.  Div.  506,  177  N.  Y.   Supp. 
58,  4  W.  C.  L.  J.  442. 

46.  Smith  v.  Heine  Safty  Boiler  Co.,   224   N.   Y.   9,   119    N.   E.    878,  2 
W.  C.  L.  J.  540. 

232 


WHO  COMES  UNDER  THE  ACT.  §   47 

where  an  employee  maintained  a  home  in  another  state,  but  for 
convenience,  while  at  work  kept  a  room  in  New  York  and  there 
contracted  for  employment  with  defendant,  but  was  injured 
while  at  work,  outside  the  state,  it  was  held  he  could  claim  com- 
pensation under  the  law  of  the  state  where  the  contract  was 
made  ;47  that  where  the  employment  contract  was  made  in  Penn- 
sylvania and  performed  in  Massachusetts,  the  New  York  Act 
could  not  apply  even  though  both  parties  were  residents  of  New 
York;48  that  a  workman  hired  in  New  York  and  injured  in 
Canada,  is  covered  by  the  New  York  Act;4'  that  the  Connecticut 
Act  applies  to  an  injury  suffered  in  that  state,  even  though  the 
contract  of  employment  was  made  in  New  York  ;50  that  where  the 
employment  contract  was  made  in  Connecticut  by  residents 
thereof,  and  the  employee  was  injured  in  Canada  the  Connecti- 
cut Act  applied  ;51  that  where  the  employment  contract  was  made  in 
New  Jersey  where  the  accident  occurred,  and  the  employee  sued 
in  New  York,  his  right  to  recover  was  governed  by  the  New 
Jersey  Act  ;82  that  where  the  contract  was  made  in  New  York  four 
years  previous  to  the  injury  in  Pennsylvania,  and  the  employ- 
ment had  not  been  continuous  and  did  not  contemplate  any  work 
by  the  employee  in  New  York,  its  act  did  not  apply  ;53  that  where 
an  employee  was  injured  in  Kansas  and  accepted  compensation 

47.  Jenkins   v.   Hogan    &  Sons,    177   App.   Div.  36,  163  N.  Y.  S.    707; 
Matter  of  Post  v.  Burger  &  Qohlke,  216  N.  Y.  544,  111  N.  E.  351.  10  N.  C. 
C.  A.  888;  Spratt  v.  Sweeny,  168  App  .Div.  403,  153  N.  Y.  Supp.  505,  9  N. 
C.  C.  A.  918;  Holmer  v.  Communipaw  Steel  Co.  et  al.  186  N.  Y.  App. 
Div.  645,  174  N.  Y.  8.  772,  3  W.  C.  L.  J.  646. 

48.  Dissoway  v.  Jallade,  7  N.  Y.  St.  Dep.  Rep.  449. 

49.  Kennedy  v.  Kennedy  Mfg.  &  Eng.  Co.,  7  N.  Y.  St.  Dep.  Rep.  383. 

50.  Coehn  v.  Union  News  Co.,  1  Conn.  Comp.  Dec.  62.  Same  Ruling  as 
to  New  Jersey  Act.  West  Jersey  Trust  Co,  v.  Philadelphia  &  R.  Ry.  Co., 
88  N.  J.  Law,  102,  95  Atl.  753;    Banks  v.    Albert  D.  Howlett  Co.  et  a!., 
92  Conn.  368,  102  Atl.  822.  1  W.  C.  L.  J.  502. 

51.  Welton  v.  Waterbury  Rolling  Mill.,  1  Conn.  Comp.  Dec.  78. 

52.  Waselewski  v.   Warner  Sugar  Refining  Co.,  87  Misc.  Rep.  156,  149 
N.  Y.  Suppl.  1035;  Pansabene  v.  F.  &  J.  Audltore  Co.,  78  Misc.  Rep.  538. 
138  N.  Y.  Supp.  947;    Prdich  v.  N.  Y.  C.  R.  Co.,  183  N.  Y.  S.  87,  6  W.  C. 
L.  J.  496,   (1920). 

53.  Gardner  v.  Horseheads  Const.  Co..  171  N.  Y.  App.  Div.  68,  156  N. 
Y.  Supp.  899,   15  N.   C.  C.  A.  984. 

233 


§  47  WORKMEN'S  COMPENSATION  LAWS. 

under  the  provisions  of  the  Kansas  Compensation  Act,  he  had  no 
common  law  action  for  damages,  in  Missouri  or  elsewhere,  in  which 
he  could  assign  an  interest,  because  he  was  bound  by  the  remedy 
given  by  the  Kansas  Compensation  Act  which  he  had  elected  to 
accept.*4 

Where  a  business  is  localized  in  Minnesota  the  Act  compen- 
sates for  injuries  though  sustained  outside  the  state.57 

Where  the  Employee  was  a  resident  of  New  Jersey,  employed 
by  a  New  Jersey  Corporation  by  contract  entered  into  in  New 
Jersey,  compensation  is  governed  by  the  New  Jersey  Act  though 
the  accident  occurred  in  New  York.58 

Where  the  employee  did  not  enter  into  a  contract  with  the  em- 
ployer in  New  York,  was  not  a  resident  of  New  York  and  did 
not  perform  the  service  in  New  York,  he  cannot  come  under  the 
New  York  Act  even  though  the  employer  is  a  New  York  Corpora- 
tion.59 

Nor  can  the  employer  bring  the  employee  who  is  a  resident  of 
New  Jersey  under  the  New  Jersey  Act  when  the  employer  is  a 
New  York  Corporation,  the  contract  or  hiring  being  executed  in 
New  York  and  the  accident  occurring  there.60 

Where  the  employer  and  employee  were  residents  of  Penn- 
sylvania and  entered  into  a  contract  in  New  Jersey  for  services 
to  be  rendered  there  the  Compensation  Law  of  New  Jersey  was 
held  to  apply.61 

54.     Piatt  v.    Swift   &  Co.,    188    Mo.   App.  584,  176  S.  W.  434. 

57.  State  ex  rel.  Chamber  v.    Dist.  Court,  Hennepin   County  et  al., 
139  Minn.  205,  166  N.  W.  185,  1  W.  C.  L.  J.  638,  15  N.  C.  C.  A.    State  ex. 
rel.,  Maryland  Gas  Co.  v.  Dist.    Court,  Rice  County,  et  al.,  140  Minn.  427, 
168  N.  W.  177,  2  W.  C.  L.  J.  524. 

58.  Earnhardt  v.  American  Concrete  Steel   Co.   (N.   Y.)  181  App.  Dlv. 
881,  167  N.  Y.  S.  475,  1  W.  C.  L.  J.  246,  15  N.  C.  C.  A.  874;   Decided  in 
Court  of  Appeals,  125  N.  E.  675,  5  W.  C.  L.  J.  567. 

59.  Bngns  v.  Standard  Oil  Co.  of  New  York,  180  N.  Y.  S.  560,  5  W.  C. 
L.  J.  740. 

60.  Hamm  v.  Rockwood  Sprinkler  Co.,  88  N.  J.  L.  564,  97  Atl.  730.  15 
N.  C.  C.  A.    876. 

61.  Bonner  v.  Tucker  Stevedoring  Co.,  25,  Pa.  Dist.  Rep.  600,  15  N.  C. 
C.  A.  875. 

234 


WHO  COMES  UNDER  THE  ACT.  §   47 

It  has  been  held  that  no  action  can  be  maintained  to  recover 
under  the  Alaska  Compensation  Act  in  any  court  outside  the 
territory  of  Alaska.82 

The  provision  of  the  California  Act  for  subrogation  to  the 
rights  of  an  injured  employee,  will  not  be  enforced  in  Oregon, 
because  in  Oregon  a  tort  action  is  not  assignable.  Therefore,  a 
claim  against  the  deceased's  employer,  a  California  Corporation, 
deceased  being  a  resident  of  that  state,  will  not  preclude  the 
widow's  recovery  against  the  negligent  third  party  in  Oregon  on 
the  theory  that  the  employer  was  subrogated  to  his  rights,  and 
the  widow  may  sue  the  third  party  and  recover  full  compensa- 
tion.68 

The  following  provisions  and  in  some  instances  the  substance  of 
the  provisions,  of  the  various  acts  and  cases  cited,  will  throw 
further  light  upon  this  complex  subject. 

ALABAMA:  Section  5b.  When  an  accident  occurs  while  the  employee  is 
elsewhere  than  in  this  State  which  would  entitle  him  or  his  de- 
pendents to  compensation  had  it  happened  in  this  State,  the  employee 
or  his  dependents  shall  be  entitled  to  compensation  under  this  act  if 
the  contract  of  employment  was  made  in  this  state  unless  otherwise 
expressly  provided  by  said  contract,  and  such  compensation  shall  be 
in  lieu  of  any  right  of  action  and  compensation  for  injury  or  death 
by  the  laws  of  any  other  State. 

ALASKA:  Section  22.  No  action  for  the  recovery  of  compensation  here- 
under  shall  be  brought  in  any  court  holden  outside  of  the  judicial 
division  in  which  the  injury  occurred,  out  of  which  the  right  to  com- 
pensation arises  except  in  cases  where  service  cannot  be  had  on  the 
employer  in  the  judicial  division  where  the  injury  occurred.  Any 
attempt  to  bring  such  action  in  any  court  outside  of  the  Territory 
of  Alaska  shall  work  a  forfeiture  of  the  right  of  the  plaintiff  in 
such  action  to  compensation  under  this  Act.  Martin  v.  Kennecott 
Copper  Corp.,  252  Fed.  207. 

ARIZONA:  Section  59.  Act  applies  to  injuries  received  outside  the  State 
if  workman  was  hired  in  the  State.  Rights  to  compensation  under 
law  of  another  State  are  enforcible  in  Arizona,  if  of  such  nature  that 
they  can  be  dealt  with  by  Arizona  Commission  and  courts. 

62.  Martin  v.  Kennecott  Copper  Corp.,  252  Fed.  207. 

63.  Rorvik  v.  Northern  Pac.  Lbr.  Co. — Oregon—,  (1920),  190  Pac.  331. 
6  W.  C.  L.  J.  385.   See  Anderson  v.  Miller  Scrap  Iron  Co.,  —  Wia.  — ,  182 
N.  W.  853. 

235 


§  47  WORKMEN'S  COMPENSATION  LAW 

CALIFORNIA:  Section  58.  The  Commission  has  jurisdiction  over  injuries 
sustained  outside  of  the  State  if  the  employee  was  a  resident  of 
the  State  and  the  contract  of  hire  was  made  within  the  State.  North 
Alaska  Salmon  Co.  v.  Pillsbury,  —  Gal.  — ,  162  Pac.  93;  Kruse  v. 
Pillshury,  Id.  891;  McManns  v.  Red  Salmon  Canning  Co.,  (Cal.)  173 
Pac.  1112. 

COLORADO:  No  provision  in  the  act  but  it  has  been  held  that  the  act  ap- 
plies to  injuries  sustained  outside  of  the  state  where  the  contract  of 
employment  was  made  within  the  state.  Indus.  Comm.  v.  Aetna  Life 
Ins.  Co.,  174  Pac.  (Colo.)  589,  17  N.  C.  C.  A.  955. 

CONNECTICUT:  Section  5388.  Applies  to  contracts  of  service,  whether  such 
contract  contemplated  the  performance  of  duties  within  or  without 
the  state.  Douthwright  v.  Champlin,  (Conn.)  100  Atl.  97,  14  N.  C.  C. 
A.  91,  95. 

DELAWARE:    Section  94,  3193a.    No  extraterritorial  application. 

GEORGIA:  Act  applies  to  injuries  sustained  outside  the  State  if  contract  of 
hire  was  made  within  the  State  and  if  employer's  place  of  business 
is  in  the  State  or  if  employee  lives  within  the  State,  unless  the  con- 
tract was  expressly  for  service  exclusively  outside  the  State.  But  if 
employee  receives  compensation  or  damages  under  the  law  of  another 
State,  total  compensation  shall  not  exceed  that  provided  by  the  Act. 
(§  37). 

HAWAII:  Section  27.  Act  extends  to  injuries  received  outside  the  Terri- 
tory, if  employee  was  hired  within  Territory.  If  hired  outside  the 
Territory,  and  entitled  to  compensation  under  the  law  of  the  State  or 
Territory  in  which  hired,  his  rights  will  be  enforced  to  the  extent 
that  they  can  reasonably  be  determined  in  Hawaii.  Jurisdiction  of 
Boards  extends  to  injuries  received  on  vessels  operated  by  residents 
of  Territory. 

IDAHO:  Section  62,  6.  If  a  workman  who  has  been  hired  in  this  state  re- 
ceives personal  injury  by  accident  arising  out  of  and  in  the  course  of 
such  employment,  he  shall  be  entitled  to  compensation  according  to 
the  law  of  this  State  even  though  such  injury  was  received  outside  of 
this  State. 

If  a  workman  who  has  been  hired  outside  of  this  State  is  injured 
while  engaged  in  his  employer's  business,  and  is  entitled  to  compen- 
sation for  such  injury  under  the  law  of  the  State  where  he  was  hired, 
he  shall  be  entitled  to  enforce  against  his  employer  his  rights  in  this 
State  if  his  rights  are  such  that  they  can  reasonably  be  determined 
and  dealt  with  by  the  Board  and  the  Courts  of  this  State. 

Employers,  who  hire  workmen  within  this  State  to  work  outside  the 
State,  may  agree  with  such  workmen  that  the  remedies  under  this 
Act  shall  be  exclusive  as  regards  injuries  received  outside  this  State 
by  accident  arising  out  of  and  in  the  course  of  such  employment;  and 
all  contracts  of  hiring  in  this  State  shall  be  presumed  to  include  such 
an  agreement. 
236 


WHO  COMES  UNDER  THE  ACT.  §   47 

ILLINOIS:  No  extraterritorial  application.  See  Friedman  Mfg.  Co.  v.  Indus. 
Bd.,  120  N.  E.  460;  Union  Bridge  and  Const.  Co.  v.  Indus.  Comm.,  122 
N.  E.  609. 

INDIANA:    Section  20.    Act  applies  to  injuries  whether  sustained  within 
the  State  or  in  another  State  or  country.    But  employment  in  a  mine 
where  shaft  or  opening  is  in  another  State,  is  subject  only  to  law  of 
that  State.     (Chapter  169,  Acts  of  1919).     Hagenback  v.  Leppert,  - 
Ind.  — ,  117  N.  E.  531. 

IOWA:  No  provision;  but  see  section  2477-m  29,  which  indicates  that  the 
Act  is  intended  to  cover  injuries  sustained  outside  the  State.  See 
also  Pierce  v.  Bekins  Van  &  Storage  Co.,  —  la.  — ,  172  N.  W.  191,  4 
W.  C.  L.  J.  78.  Which  holds  that  the  act  being  elective  is  contractual, 
in  that  it  becomes  part  of  the  contract  of  employment  and  is  held  to 
follow  the  employee  to  the  place  of  performance  of  the  contract. 

KANSAS:  Section  5930.  No  action  or  proceeding  under  the  Act  may  be 
brought  outside  of  the  State;  and  notice  to  non-residents  of  the  State 
may  be  served  by  publication.  See  also  Sec.  5900,  5£40,  5941.  Ques- 
tion suggested  in  Hicks  v.  Swift,  —  Kan.  — ,  168  Pac.  904,  but  not 
decided,  although  the  court  in  discussing  the  question  could  not  see 
why  it  would  be  restricted  to  accidents  occurring  within  the  state. 

KENTUCKY:  Section  8.  Employers  who  hire  employees  within  this  State 
to  work  in  whole  or  in  part  without  this  State,  may  agree  in  writing 
with  such  employees  to  exempt  from  the  operation  of  this  act  injuries 
received  outside  of  this  State;  in  the  absence  of  such  an  agreement, 
the  remedies  provided  by  this  act  shall  be  exclusive  as  regards  in- 
juries received  outside  this  State  upon  the  same  terms  and  conditions 
as  if  received  within  this  State. 

LOUISIANA:    No  provision. 

MAINE:  Secticm  25.  Contract  of  hire  made  within  the  State  for  perform- 
ance outside  the  State,  is  presumed  to  include  agreement  making 
compensation  under  this  Act  the  exclusive  remedy  for  injuries  BUS. 
tained. 

MARYLAND:  (Sec.  63,  (3,  12)  ).  Act  does  not  apply  to  workmen  employed 
wholly  without  the  State,  except  as  to  mining  employees  who  are 
injured  while  working  In  some  part  of  the  mine  extending  under- 
ground into  an  adjoining  State,  if  the  tipple,  mouth  or  principal  en- 
trance of  such  mine  is  situated  within  the  State. 

MASSACHUSETTS:   No  extraterritorial  application. 

See  In  re  Gould.  215  Mass.  408;    Cogliano  v.  Ferguson,  —  Mass. 
— ,  117  N.  E.  45. 

MICHIGAN:  Amendment  of  1921,  Pt.  Ill,  §  19  gives  extra-territorial  ap- 
plication. Crane  v.  Leonard,  Crossett  &  Riley,  —Mich.  — ,  183  N. 
W.  204. 

MINNESOTA:  No  provision;  but  see  State  ex  rel.  Chambers  v.  District 
Court  of  Hennepin  County,  166  N.  W.  185;  State  ex  rel.  Maryland 
Casualty  Co.  v.  District  Court  of  Rice  County,  168  N.  W.  177;  State 
ex  rel.  London,  etc.,  Co.  v.  District  Court  of  Hennepin  County,  170 
N.  W.  218;  Stansberry  v.  Stove  Co.,  183  N.  W.  997. 

237 


§  47  WORKMEN'S  COMPENSATION  LAW. 

MISSOURI:  Section  12b.  Act  applies  to  injuries  received  outside  the  State 
under  contracts  of  employment  made  in  the  State,  unless  the  contract 
otherwise  provides. 

MONTANA:    No  provision. 

NEBRASKA:    No  provision. 

NEVADA:  Section  41.  Employee  hired -within  the  State  whose  duties  are 
usually  confined  to  the  State,  is  entitled  to  compensation  for  injury 
received  outside  the  State  while  engaged  in  employer's  business. 

NEW  HAMPSHIRE:    No  provision. 

NEW  JEBSEY:  No  provision  in  the  act,  but  decisions  hold  that  it  applies  to 
accidents  suffered  outside  of  the  State.  Foley  v.  Home  Rubber  Co.» 
W  Atl.  624  (N.  J.)  16  N.  C.  C.  A.  886. 

NEW  MEXICO:    No  provision. 

NEW  YOBK:  No  provision;  but  the  courts  have  generally  given  extrater- 
ritorial effect  to  the  Act,  especially  where  the  employee  has  been  a 
resident  of  the  State,  or  where  the  contract  of  employment  was  made 
in  the  State.  Edwardsen  v.  Jarvis  Lighterage  Co.,  153  N.  Y.  S.  391; 
Spratt  v.  Sweeney  &  Gray  Co.,  Id.  505;  Affd.  216  N.  Y.  763;  Valentine 
v.  Smith,  168  App.  Div.  403;  Affd.  216  N.  Y.  763;  Post  v.  Burger,  163 
A.  D.  403;  Affd.  216  N.  Y.  544,  111  N.  E.  351;  Klein  v.  Stoller,  220 
N.  Y.  mem;  Fitzpatrick  v.  Blacknall,  220  N.  Y.  671;  Gilbert  v.  Des 
Lauriers  Column  Mould  Co.,  167  N.  Y.  S.  274.  But  see,  contra,  Gar- 
dener v.  Horseheads  Constr.  Co.,  156  N.  Y.  S.  899;  Jenkins  v.  Hogan 
&  Sons,  Inc.,  163  N.  Y.  S.  707;  Holmes  v.  Communipaw  Steel  Co., 
174  N.  Y.  S.  722;  Smith  v.  Heine  Safety  Boiler  Co.,  119  N.  E.  878,  224 
N.  Y.  9,  reversing  169  N.  Y.  S.  1114;  Thompson  v.  Foundation  Co.,  177 
N.  Y.  S.  58;  State  Ind.  Comm.  v.  Barene,  Id.  689;  Perlis  v.  Lederer, 
178  N.  Y.  S.  449;  Baggs  v.  Standard  Oil  Co.  of  N.  Y.,  180  N.  Y.  S.  560. 

NORTH  DAKOTA:  Section  5,  10.  Compensation  is  payable  for  injuries  cov- 
ered wheresoever  they  have  occurred. 

OHIO:  Section  1465-68,  1465-69.  Act  applies  to  injuries  wheresoever  they 
may  occur. 

OKLAHOMA:    No  provision. 

OREGON:    No  provision. 

PENNSYLVANIA:  Section  1.  Act  does  not  apply  to  any  accident  occurring 
outside  of  the  commonwealth,  irrespective  of  the  place  where  the  con- 
tract of  hiring  was  made. 

PORTO  Rico:   No  provision. 

RHODE  ISLAND:  No  provision.  But  construed  to  apply  to  accidents  suffer- 
ed outside  of  the  state.  Grinnel  v.  Wilkinson,  —  R.  I.  — ,  98  Atl.  103. 

SOUTH  DAKOTA:  Section  9453.  Act  applies  to  injuries  sustained  within 
the  State  or  in  another  State  or  country. 

TENNESSEE:  Section  19.  Act  applies  to  injuries  sustained  outside  the 
State,  if  contract  of  employment  was  made  in  the  State  and  does  not 
expressly  otherwise  provide. 

TEXAS:    Pt.  1,  Section  19.    Act  applies  to  injuries  received  outside  of  the 
State,  if  employee  was  hired  within  the  State. 
238 


WHO  COMES  UNDER  THE  ACT.  §    47 

UNITED  STATES:     No  provision. 

UTAH:  Section  3126.  Act  applies  to  injuries  received  outside  State  If 
workman  was  hired  in  State  and  rights  to  compensation  under  law  of 
another  State  are  enforcible  in  Utah,  if  of  such  nature  that  they  can 
be  dealt  with  by  Utah  Commission  and  courts. 

VEBMONT:  Section  5774.  Injuries  sustained  outside  the  State  covered,  if 
contract  of  hiring  was  made  within  the  State;  if  made  outside  the 
State,  compensation  may  be  awarded  with  reference  to  the  law  of  the 
State  in  which  the  employee  was  hired  (Sections  5779,  5771).  Con- 
tracts of  hiring  within  the  State  for  performance  outside  the  State  are 
presumed  to  include  agreement  making  compensation  under  the  Act 
the  exclusive  remedy  for  injuries. 

VIRGINIA:  Section  37.  Act  applies  to  injuries  sustained  outside  the  State 
if  contract  of  hire  was  made  within  the  State;  if  employer's  place  of 
business  is  in  the  State;  and  if  employee  lives  within  the  State;  un- 
less contract  was  for  service  exclusively  outside  the  State. 

WASHINGTON:   No  provision. 

WEST  VIBGINIA:  Section  9.  Act  no  longer  applies  to  employee  while  em- 
ployed without  the  State,  except  where  his  employment  necessitates 
his  temporary  absence  from  the  State,  directly  incidental  to  carrying 
on  an  industry  in  the  State.  (Formerly  the  Act  did  not  apply  to  em- 
ployees employed  wholly  without  the  State).  It  is  newly  provided 
that  a  mine  shall  be  adjudicated  within  the  State  when  the  main 
opening,  drift,  shaft  or  slope  is  located  wholly  within  the  State. 

WISCONSIN:  No  provision,  but  decisions  hold  it  to  have  extraterritorial 
application.  Johnson  v.  Nelson,  150  N.  W.  620;  Anderson  v.  Miller 
Scrap  Iron  Co.,  170  N.  W.  275. 

WYOMING:    No  provision. 


289 


CHAPTER  IV. 

HAZARDOUS  EMPLOYMENT. 

Sec. 

48.  General  Consideration. 

49.  Incidental  Work  In  Hazardous  Employment. 

50.  Diversified  Employment. 

51.  Away  From  Plant. 

52.  Altering. 

53.  Appliances. 

54.  Bottling. 

55.  Brick  Making. 

56.  Building  Construction,  Repair,  etc. 

57.  Butcher  Shop. 

58.  Cannery. 

59.  Carpenter  Shop. 

60.  Carriers — Carriages. 

61.  Hauling   Incidental   To   Employers   Business 

62.  Loading  And  Unloading. 

63.  Charitable  Institution. 

64.  Chauffeur   Repairing   Family   Car. 

65.  Coal   Business. 

66.  Collector. 

67.  Commission  Business. 

68.  Construction. 

69.  Dairy. 

70.  Decorating. 

71.  Dredging. 

72.  Driver. 

73.  Drug  Store. 

74.  Elevators. 

75.  Engineering — Lifting  Radiator. 

76.  Engineering  Work. 

77.  Engineering  Works. 

78.  Ensilage  Cutter. 

79.  Enterprise. 

80.  Erection. 

81.  Excavating. 

82.  Explosives,  Etc. 
240 


HAZARDOUS    EMPLOYMENT. 

83.  Factory. 

84.  Farming. 

85.  Florists. 

86.  Garbage  Disposal  Plant. 

87.  Garbage  Removal. 

88.  Groceries,  Wholesale. 

89.  Heating. 

90.  Hoisting  Apparatus — Hand  Elevator. 

91.  Hospital. 

92.  Hotel. 

93.  Ice  Harvesting. 

94.  Installation  Of  Water  Tank. 

95.  Junk  Business. 

96.  Logging. 

97.  Longshore. 

98.  Maintain. 

99.  Manhole  Construction. 

100.  Manufacture. 

101.  Mason  Or  Concrete  Work. 

102.  Meat  Market. 
103  Miner. 

104.  Moving  Picture. 
(See  Manufacture). 

105.  Mining — Quarrying. 
108.    Night  Watchman. 

107.  Oil  6  Gas  Wells. 

108.  On,  In,  Or,  About. 

109.  Same — Plant — Factory. 

110.  Operation — Engines. 

111.  Pile  Driving. 

112.  Plastering. 

113.  Pleasure  Club. 

114.  Power  Machinery. 

115.  Private  Railroad. 

116.  Process  Server. 

117.  Road  Building. 

118.  Salesman. 

119.  Sewer    Construction. 

120.  Slaughter  And  Packing  House. 

121.  Smoke  Stack  Wrecking. 

122.  Stable. 

123.  Storage. 

124.  Street  Railway. 

125.  Structure. 

126.  Subway. 

127.  Threshing  Machine. 

241 
W.  C.— 16 


§  48  WORKMEN'S  COMPENSATION  LAW 

128.  Undertaking. 

129.  Upholstering — Carpet  Laying. 

130.  Vehicles. 

131.  Vessels — Unloading. 

132.  Warehouse. 

133..  Window  Cleaning. 

134.  Determination  Of  Question. 


§  48.  General  Consideration. — Some  .  of  the  Compensation 
statutes  apply  only  to  hazardous  or  extra-hazardous  industries, 
which  are  set  out  quite  specifically  in  some,  but  more  general 
in  others.  For  an  employee  to  be  entitled  to  the  benefits  of  such 
act,  the  facts  must  bring  his  employment  within  the  terms  of  the 
statute  of  his  state,  which  cannot  be  extended  by  the  court,  under 
the  rule  of  liberal  construction,  beyond  their  plain  import.1 

[n  New  York  it  is  unnecessary  that  the  work  of  the  particu- 
lar employee  be  of  hazardous  nature,  in  order  to  bring  him  within 
the  statute;  it  is  sufficient  if  the  work  is  incidental  to  the  hazard- 
ous business  of  the  employer.  Thus,  an  employee  working  in  the 
cost  and  payroll  department,  whose  work  was  largely  clerical, 
the  business  of  the  employer  being  hazardous,  was  entitled  to 
compensation  for  injuries  received  when  the  chair  on  which  she 
was  sitting  gave  way  and  she  fell  to  the  floor.2 

While  the  work  of  an  employee  may  not  be  hazardous,  he  may 
still  come  within  the  act  if  his  employment  exposes  him  to  the 
dangers  of  the  industry  which  are  hazardous;  as,  for  example, 
where  in  going  to  and  from  work  he  is  compelled  to  pass  through 
a  room  in  which  power  driven  machinery  is  located.3 

On  the  other  hand,  to  come  within  the  act,  the  work  or  occupa- 
tion must  subject  the  employee  to  the  hazards  contemplated  by 
the  law'4  unless  the  act  indicates  an  intention  to  include  em- 
ployees "in  the  service  of  an  employer  carrying  on  a  hazardous 
employment"  as  now  provided  by  amendment  to  the  New  York 
act.8 

"The  statute  of  (1913)  does  not  undertake  to  specifically  de- 
fine or  specifically  describe  every  business  occupation  or  enter- 
prise that  it  classifies  as  extra  hazardous,  but  it  is  clear  that 
242 


HAZARDOUS    EMPLOYMENT.  §   48 

no  business  should  be  held  to  be  extrahazardous  unless  it  is,  in 
fact,  extrahazardous  per  se,  or  is  rendered  extrahazardous  when 
conducted  under  conditions  and  surroundings  named  in  the  stat- 
ute."9 

Under  the  New  Hampshire  Act,  the  work  of  the  employee  at 
the  moment  of  injury,  considered  without  reference  to  other 
work  of  his  general  employment,  may  not  fall  within  the  descrip- 
tion of  work  contained  in  the  act,  but  may  still  come  within  it 
owing  to  the  nature  of  his  general  employment.7 

The  manifest  intent  of  the  Washington  act  is  not  to  compensate 
for  accidents  generally,  but  to  cover  accidents  occurring  in  haz- 
ardous employments.8 

"Where  the  employee's  ordinary  duties  and  accustomed  scope 
of  activities  do  not  come  exclusively  or  predominantly  within 
the  category  of  enumerated  employments,  and  only  casually  and 
incidentally  does  he  do  work  fairly  falling  within  that  category, 
his  right  to  remuneration  must  hinge  on  finding  that  he  sustained 
injury  while  actually  and  momentarily  doing  work  named  in  the 
statute.  If  the  employer  shows  that  the  employee  was  not  so 
engaged  when  he  met  with  injury,  he  is  not  entitled  to  reimburse- 
ment under  the  statute,  even  though  he  at 'times  did  work  em- 
braced within  the  statute."9 

1.  Lizotte  v.  Nashua  Mfg.  Co.,  78  N.  H.  357,  100  Atl.  757. 

2.  Joyce  v.  Eastman  Kodak  Co.,  182   App.  Dtv.  354.  170  N.  Y.  Supp. 
401,  16  N.  C.  C.  A.  643;  Krinsky  v.  Ward  &  Gow,  184  N.  Y.  S.  443,  7  W. 
C.  L.  J.  109,  1920. 

3.  Peking  Cooperage  Co.  v.  Industrial  Board,  277  111.  53,  115  N.  E.  128, 
16  N.  C.  C.  A.  636. 

4.  Brown  v.  Richmond  L.  &  R.  Co.,  173  App.  Div.  432,  159  N.  Y.  Supp. 
1047,  16  N.  C.  C.  A.  637. 

5.  Sprang  v.  Broadway  Brewing  &  Malting  Co.,  182  App.  Div.  473,  169 
N.  Y.  Supp.  574,  16  N.  C.  C.  A.  638. 

6.  Hahenmann  Hospital  v.    Industrial   Board,  282  HI.  316;    Bowman 
Dairy  Co.  v.  Industrial  Comm.,  292  111.  284. 

7.  Pellerim  v.  International  Cotton  Mills,  248  Fed.  242,  16  N.  C.  C.  A. 
633. 

8.  Guerrieri    v.    Indus.  Ins.    Comm,    84    Wash.,  266,  8    N.    C.  C.    A. 
440,  146  Pac.    608. 

9.  Gleisner  &  Hubener,  —  N.  Y.  App.  Div.  — ,  155  N.  Y.  S.  946,  11  N. 
C.  C.  A.  328, 

243 


§    48  WORKMEN'S   COMPENSATION  LAW 

'Although  the  main  purpose  of  conducting  a  farm  was  to  fur- 
ther the  interests  of  the  employer's  city  business,  which  was  a 
hazardous  employment  the  court  held  that  the  employer  not  hav- 
ing elected  to  come  under  the  act  in  regard  to  the  occupation  of 
farming,  an  employee  engaged  on  the  farm  could  not  claim  the 
benefits  of  the  act,  for  farm  laborers  are  not  included  within  the 
act.  "Any  man  employed  to  work  on  a  farm,  and  to  perform  the 
work  ordinarily  done,  there,  is  a  farm  laborer.  The  statute  does  not 
classify  the  employee  by  the  ordinary  business  of  his  employer, 
but  by  the  kind  of  work  he,  himself,  is  employed  to  do."10 

One  engaged  in  improving  the  appearances  of  a  farm  for  the 
purpose  of  effecting  a  sale  is  not  engaged  in  farm  labor  and  is 
entitled  to  an  award  for  injuries  received.11 

So  a  policeman  is  not  within  the  act  merely  because  the  city  is 
engaged  in  some  occupations  considered  hazardous.12 

Where  the  all  around  handy  man  of  a  city,  whose  duties  in- 
clude the  care  of  the  streets,  street  lamps,  engine  house,  the  water 
system,  electric  poles,  and  everything  contained  within  the  corpo- 
ration, was  injured  when  he  caught  a  truck  ride  to  the  depot 
and  intended  to  use  the  truck  for  hauling  back  some  lead,  it  was 
held  that  the  city  was  not  engaged  as  a  common  carrier,  nor  was 
it  engaged  in  a  hazardous  occupation.13 

Under  the  Washington  act  if  any  portion  of  the  employer's 
business  is  extrahazardous,  his  employees  come  within  the  act, 
and  it  is  immaterial  that  his  principal  business  is  not  hazard- 
ous.14 

The  Massachusetts  act  must  be  accepted  as  a  whole  as  to  all 
branches  of  one's  business  with  respect  to  all  those  in  the  serv- 

10.  Shafer  v.  Park  Davis  &  Co.,  —  Mich.  — ,  159  N.  W.  304,  14  N    C 
C.  A.  1078. 

11.  Odell  v.  Bowman,  189  N.  Y.  App.  Div.  386. 

12.  Marshall  v.  City  of  Pekin,  276  111.  187,  118  N   E.  497   14  N   C   C   A 
1083. 

13.  Spinks  v.  Village  of  Marcellus,  180  N.  Y.  App.  Div.  732,  168  N.  Y. 
Supp.  69,  16  N.  C.  C.  A.  670,  1  W.  C.  L.  J.  689. 

14.  Wendt  v.  Indus.  Comm.,  80  Wash.  Ill,  141  Pac.  311,  5  N.  C.  C.  A. 
790;   State  v.  Business  Property  Security  Co.,  87  Wash.  627,  152  Pac   334 
11  N.  C.  C.  A.  322. 

244 


HAZARDOUS    EMPLOYMENT.  §   48 

ice  under  any  contract  of  hire  in  that  particular  business.  So 
where  an  employer  operating  nearly  100  shoe  stores  took  out 
insurance  on  the  same,  stating  that  its  business  was  located  at 
•'Farmingham  Mass."  and  its  business  "boot  and  shoe  manu- 
facturers," insurance  to  be  payable  upon  any  person  to  whom 
compensation  shall  become  due.  An  employee  was  injured  in  a 
retail  store  in  Boston  and  the  court  in  holding  that  he  was 
under  the  Compensation  Act  said,  "The  workmen's  compen- 
sation act  does  not  permit  an  employer  to  become  a  subscrib- 
er as  to  one  part  of  its  business  and  to  remain  a  nonsubscrib- 
er  as  to  the  rest  of  a  business  which  is  in  substance  and  effect 
conducted  as  one  business.  Tt  has  been  decided  that  insur- 
ance as  to  one  class  of  employees  of  a  farmer,  engaged  as  driv- 
ers and  helpers  in  the  distribution  and  marketing  of  his  prod- 
uce, does  not  require  insurance  of  farm  laborers  who  are  ex- 
pressly exempted  from  the  act.  Keaney's  case,  217  Mass.  5,  4 
N.  C.  C.  A.  556,  104  N.  E.  438.  We  do  not  include  within  the 
scope  of  this  decision  transportation  companies  carrying  on 
•interstate  commerce  and  in  this  regard  wholly  subject  to  the 
acts  of  congress  (Corbett  v.  Boston  &  M.  R.  R.,  219  Mass.  351, 
107  N.  E.  60;  Northern  Pac.  Ry.  v.  Washington,  222  U.  S.  370, 
56  L.  Ed.  237,  32  Sup.  Ct.  160),  but  subject  to  state  law  as  to 
intrastate  business,  not  those  conducting  two  wholly  different 
and  distinct  kinds  of  business  quite  disconnected  with  each 
other  in  place,  nature  and  management.  Such  cases,  if  and 
when  they  arise  are  to  be  considered  on  their  own  merits.  We 
are  dealing  here  with  a  case  where  one  employer  is  conduct- 
ing under  single  general  administration  the  business  of  manu- 
facturing, jobbing  at  the  factory,  and  selling  at  retail  in  the 
factory  and  in  stores.  The  circumstances  that  at  the  retail 
stores  are  sold  other  shoes  and  rubbers  besides  those  manufac- 
tured at  the  factory,  does  not  render  the  retail  stores  a  busi- 
ness separate  from  the  general  business  which  is  carried  on  as 
a  unit  made  up  of  numerous  parts."15 

If    any  work  the    employee  engages  in    is  extra-hazardous   it 

15.    In  re  Cox,  225  Mass.  220,  114  N.   E.  281,  14  N.  C.  C.  A.  1075. 

245 


§  49  WORKMEN'S  COMPENSATION  LAW 

is    immaterial  whether  his    usual  employment    is  hazardous    or 
not.18 

§  49.  Incidental  Work  in  Hazardous  Employments, — Where 
an  employee  is  itfjured  while  performing  an  act  which  is  fairly 
incidental  to  the  prosecution  of  a  business  and  appropriate  in 
carrying  it  forward  and  providing  for  its  needs,  he  or  his  de- 
pendents are  not  to  be  barred  from  recovery  because  such  act 
is  not  a  step  wholly  embraced  in  the  precise  and  characteristic 
process  or  operation  which  has  been  made  the  basis  of  the  group 
in  which  employment  is  claimed.17 

The  court  in  holding  that  an  employee,  who  was  injured  while 
installing  an  engine,  was  engaged  in  work  incidental  to  the  haz- 
ardous business  of  operating  a  paper  mill  said:  "This  mill  was 
a  going  concern;  to  run  it  to  its  full  capacity,  there  was  need 
of  new  machinery;  and  the  installation  of  another  engine  was 
incidental  to  its  continued  operation.  The  men  who  were  doing 
this  work  were  not  improving  some  building  belonging  to  their 
employer,  but  unrelated  to  the  business.  They  were  furthering 
the  business  itself. ' ' 18 

A  night  watchmen  was  found  dead  at  the  bottom  of  a  well 
while  on  duty  about  the  building  of  a  bakery  which  is  designated 
as  hazardous  under  Section  2,  group  34  of  the  New  York  act.  In 
holding  that  the  dependents  were  entitled  to  compensation,  the 
court  said:  "An  employee  is  injured  while  performing  an  act 
which  is  fairly  incidental  to  the  prosecution  of  a  business  and 
appropriate  in  carrying  it  forward  and  providing  for  its  needs, 
he  or  his  dependents  are  not  to  be  barred  from  recovery  because 
such  act  is  not  a  step  wholly  embraced  in  the  precise  and  character- 
istic process  or  operation  which  has  been  made  the  basis  of  the 
group  in  which  employment  is  claimed. ' ' 19 

16.  Replogle  v.   Seattle  School  District,  84  Wash.   Ill,  11  N.  C.  C.  A. 
321,  141  Pac.  311. 

17.  Larsen  v.  Painne,  218  N.  Y.  252,  112  N.  E.  725. 

18.  McNally  v.  Diamond  Mills  Paper  Co.,  223  N.  Y.  83,  119  N.  E.  242, 
2  W.  C.  L.  J.  110,  Revg.  178  App.  Div.  342,  164  Supp.  793. 

19.  Fogarty  v.  National  Biscuit  Co.,  221  N.  Y.  2D,  116  N.  E.  346,  16  N. 
C.  C.  A.  639,  Revg.  175  App.  Div.  729. 

246 


HAZARDOUS    EMPLOYMENT.  §    49 

A  clerical  worker,  in  the  office  of  an  employer  who  conducted 
a  hazardous  occupation,  whose  duties  were  caring  for  and  sorting 
time  cards,  was  engaged  in  work  sufficiently  incidental  to  the 
business  of  the  employer  to  be  entitled  to  compensation.20 

Although  an  employer  engaged  in  storing  fruits  and  produce 
is  engaged  in  a  hazardous  business,  a  person  employed  by  him 
as  a  traveling  agent  solely  for  the  purpose  of  buying  fruits,  was 
not  entitled  to  compensation  for  an  injury  received  in  an  auto- 
mobile accident  while  on  a  purchasing  trip  in  a  foreign  state,  as 
the  work  in  which  he  was  engaged  had  no  connection  with  the 
storage  business.21 

Although  an  employer  is  conducting  a  hazardous  employment, 
an  employee  whose  duties,  are  to  sweep  out  and  mop  the  office 
and  under  no  circumstance  or  at  no  time  was  he  exposed  to  the 
hazards  of  the  employment,  therefore  he  was  not  an  employer; 
within  the  contemplation  of  the  act  and  not  entitled  to  com- 
pensation under  the  act.22 

The  erection  of  a  pulp  carrier  which  was  to  be  operated  by 
mechanical  power  when  completed,  and  for  the  purpose  of  con- 
veying pulp  to  the  employer's  factory  is  not  sufficiently  incidental 
to  the  main  hazardous  occupation  to  come  within  the  act.  The 
court  said:  "If  the  plaintiff  had  been  engaged  in  working  in 
a  place  on  or  in  connection  with,  or  in  proximity  to  machinery 
propelled  or  operated  by  steam  or  other  mechanical  power  when 
the  accident  occurred,  there  would  be  no  question  as  to  the  appli- 
cability of  the  statute.  He  would  then  have  been  working  in  a 
place  on,  in  connection  with,  or  in  proximity  to  machinery  pro 
pelled  or  operated  by  steam  or  other  mechanical  power.  But, 
as  there  was  no  apparatus  or  machinery  installed  or  in  operation 
at  the  time  and  place  of  the  accident,  it  cannot  be  said  that  he 
was  so  employed.  *  *  *  "The  place  where  the  pulp  carrier 

20.  Joyce  v.  Eastman  Kodak  Co.,  182  App.  Div.  354,  170  N.  Y.  S.  401, 
16  N.  C.  C.  A.  643. 

21.  Sickles  v.  Ballston  R.  S.  Co.,  171  App.  Div.  108,  156  N.  Y.  Supp. 
864. 

22.  Kehoe  v.  Consolidated  Telegraph  &  Electrical  Supply  Co.,  176  N. 
Y.  App.  Div.  84,  162  N.  Y.  S.  481,  16  N.  C.  C.  A.  640. 

247 


§  49  WORKMEN'S  COMPENSATION  LAW 

was  being  erected  was  in  no  way  appurtenant  to  the  defendants' 
mills  and  in  no  sense  a  part  of  their  manufacturing  plant.  To 
hold  that  building  a  pulp  carrier  for  the  defendants  more  than 
a  mile  from  their  mills  in  working  in  their  mills  within  the  mean- 
ing of  the  statute  would  lead  to  results  never  contemplated  by 
the  legislature.  Under  such  an  interpretation  of  the  statute  those 
engaged  for  the  defendants  in  felling  trees,  -hauling  them  from 
the  forest  many  miles  from  their  mills  could  be  said  to  be  working 
in  their  mills."  23 

Under  the  California  act  which  excludes  from  its  operation 
"any  person  whose  employment  is  both  casual  and  not  in  the 
usual  course  of  the  business  of  the  employer,  it  was  held  that 
a  farm  employee,  who  was  injured  while  engaged  in  fighting  a 
fire  which  threatened  the  ranch,  was  not  engaged  in  the  'usual' 
course  of  his  employment  since  it  was  not  incident  to  the  con- 
duct of  the  business  and  was  of  a  casual  nature.24 

An  employee  engaged  in  working  on  a  mill  flume  is  within 
the  act,  where  the  operation  of  the  mill  is  extra-hazardous.25 

Where  an  employee,  engaged  in  a  hazardous  occupation  went 
to  a  police  station  at  the  direction  of  his  employer  to  ascertain 
if  bail  offered  for  a  customer  of  the  proprietor's  adjoining  saloon 
was  acceptable  and  the  employee  while  there  was  injured  wheii 
pushed  by  a  policeman,  his  injuries  did  not  arise  out  of  his  em- 
ployment.26 

Employees  in  the  service  of  an  employer,  who  is  carrying  on 
a  hazardous  work  are  included  within  the  act.  Therefore  a  brick- 
layer employed  by  a  company,  engaged  in  lithographing  and 
printing,  which  is  classified  as  a  hazardous  occupation,  to  point 
up  one  of  the  walls  of  the  employer's  plant  is  engaged  in  a  work 

23.  King  v.  Berlin  Mills  Co.,— N.  H.— 99  Atl.  289,  14  N.  C.  C.  A.  1081. 

24.  London   &  L.  Guar.  &   Ace.  Co.  of  Canada  v.  Indus.  Ace.  Comm. 
Cal.,  161  Pac.  2,  14  N.  C.  C.  A.  1085.  Maryland  Casualty  Co.  v.  Pillsbury 
172  Cal.  748,158  Pac.  1031. 

25.  Boody  v.  K.  &    C.Mfg.  Co.,    77  N.  H.   208,  5    N.    C.    C.    A.     840,    L. 
R.  A.  1916  A.  10,  Ann.   Cas.   1914  D.  1280. 

26.  Sabatelli  v.  DeRoberts  183  N.  Y.  S.  796,  (1920),  6  W.  C.  L.  J.  573. 

27.  Dose  v.  Moehle  Lithographic  Co.,  221  N.  Y.  401,  117  N.  E.  616,  16 

248 


HAZARDOUS    EMPLOYMENT.  §    49 

incidental  to  the  business  of  the  employer,  and  within  the  class 
embraced  within  the  amendment  of  1916,  C.  622,  Par.  2  of  the 
New  York  act  and  entitled  to  compensation.27 

A  gas  company's  office,  in  which  clerical  work  is  carried  on 
by  a  woman  clerk  injuried  in  operating  a  power  driven  machine 
for  making  plates  for  printing  bills  is  a  factory  or  workshop, 
although  her  principal  duties  are  clerical.28 

But  where  a  proprietor  of  a  meat  market  conducted  a  fruit 
store  in  a  separate  building  not  adjoining  the  meat  market, 
it  was  held  not  to  be  incidental  to  the  meat  business  so  as  to 
entitle  an  employee  to  compensation  for  injuries  while  work- 
ing in  the  store.29 

Employees  of  a  blacksmith  shop  where  there  was  no  power 
driven  machinery,  but  who  in  going  to  and  from  work  were 
compelled  to  pass  through  a  room  where  power  driven  machin- 
ery was  located,  were  held  to  be  engaged  in  a  hazardous  occu- 
pation. The  court  said:  "In  Surburban  Ice  Co.  v.  Industrial 
Board,  274  111.  630  (14  N.  C.  C.  A.  1080n),  113  N.  E.  979,  we 
held  that  an  employer  who  operated  a  plant  for  the  manufacture 
of  ice  and  engaged  in  the  sale  of  ice,  coal,  coke,  and  wood  and 
owned  and  used  several  teams  for  the  delivery  of  the  same 
was  engaged  in  an  extraha/ardous  enterprise  under  the  work- 
men's compensation  act,  and  that  a  teamster  employed  by  such 
employer  to  deliver  ice  and  coal,  who  was  kicked  by  a  horse 
in  a  barn  where  the  horses  were  kept,  was  within  the  protec- 
tion of  the  act.  In  Chicago  Dry  Kiln  Co.,  v.  Industrial  Board, 
276  111.  556  (14  N.  C.  C.  A.  242n),  114  N.  E.  1009,  we  held  that 
a  night  watchman  employed  by  a  company  engaged  in  drying 
lumber  and  operating  a  plaining  mill  which  was  admittedly  under 
the  workman's  compensation  act,  and  who  was  injured  as  a  result 
of  an  assault  made  upon  him  by  a  person  who  was  attempting  to 
enter  a  building  owned  by  his  employer  in  the  night-time  and  while 
the  mill  was  not  in  operation,  was  within  the  protection  of  the 
act.  Prom  these  cases  it  must  follow  that  Garls  (applicant)  was 

N.  C.  C.  A.  633,  Rev'g.  179  App.  Div.  519. 

28.  Qowey  v.  Seattle  Lighting  Co.,— Wash.— ,   (1919),  184   Pac.  339;  4 
W.  C.  L.  J.  752. 

29.  Wood  v    Papaw.  184  N.  Y.  Supp.  686,  7  W.  C.  L.  J.  113. 

249 


§    49  WORK  MEN 'S   COMPENSATION  LAW 

within  the  protection  of  the  workmen's  compensation  act.  The 
blacksmith  shop  in  which  he  was  employed  was  operated  in  con- 
nection with  the  remainder  of  the  plaintiff  in  error's  plant,  and 
Garls  was  required,  in  going  to  the  office  to  receive  his  pay,  to' 
pass  through  a  room  in  which  power-driven  machinery  was  oper- 
ated."30   

In  construing  the  New  Hampshire  act  with  reference  to  the 
employments  that  are  covered  by  it  the  court  said:  "But  in 
order  to  be  within  the  statute,  the  employment  wherein  the 
plaintiff  was  manually  laboring  when  injured  must  not  only  be 
work  in  a  mill,  but  also,  work  in  connection  with  or  proximity 
to  any  hoisting  apparatus  or  machinery,'  such  as  the  statute  de- 
scribes. Moving  the  cupboard,  if  it  is  to  be  considered  by  itself, 
without  regard  to  any  work  included  within  the  plaintiff's  gen- 
eral employment,  is  certainly  not  shown  to  have  been  work  of 
that  description.  It  had  no  connection  with  any  machinery 
whatever,  nor  can  we  believe  that  it  was  'in  proximity  to'  any, 
in  the  statutory  sense,  even  if  such  machinery  was  to  be  found 
in  the  building,  to  which  the  platform  belonged.  "If  the  plain- 
tiff had  been  employed  to  do  work  such  as  never  required  him 
to  enter  this  building,  or  any  building  belonging  to  the  mill  and 
containing  such  machinery,  he  would  have  not  been  entitled  to 
the  statutory  remedy,  according  to  Lizotte  v.  Nashua  Mfg.  Co., 
78  N.  H.  357,  100  Atl.  757.  This  however,  was  not  the  case  as  has 
been  stated.  *  *  *  Under  his  employment,  the  plaintiff  might 
at  any  time  be  engaged  in  manual  labor  in  connection  with  or 
in  proximity  to  the  machinery  in  the  mill,  and  he  frequently 
had  been  so  engaged."  Therefore,  the  court  decided  that  plain- 
tiff was  protected  by  the  act  and  entitled  to  compensation  there- 
under.31 

Procuring  men  and  supplies  for  the  performance  of  work  in 
a  hazardous  employment  was  held  to  be  sufficiently  incidental 

30.  Pekin  Cooperage  Co.,  v.  Indus,  Board,  277  111;  53,  115  N.  E.  128.16 
N.  C.  C.  A.  636;  Chicago  Dry  Kiln  Co.,  v.  Indus  Bd.,  276  111.  556,  14  N.  C. 
C.  A.  242.  114  N.  E.  1003,  Suburban  Ice  Co.,  v.  Indus  Bd.,  274  111.  630,  113 
N.  E.  979,  14  N.  C.    C.  A.  1080. 

31.  Pellerim  v.  International  Cotton  Mills,  —  C.  C.  A.  — ,  248  Fed.  242, 
16  N.  C.  C.  A.  633. 

250 


HAZARDOUS    EMl»fX>VMENT.  §    50 

to  the  claimant's  employment  as  a  foreman  to  entitle  him  to 
compensation  for  injuries  sustained  there.82 

Under  the  same  or  a  similiar  state  of  facts  as  existed  in  the 
Lanigan  case  supra  the  court  reversed  an  award  in  favor  of  a 
superintendent  of  highways  for  a  town  on  the  theory  that  he 
was  an  officer  and  iiot  an  employee.83 

Taking  in  danger  signal  lanterns  is  not  incidental  to  bridge 
repairing.8* 

§  50.  Diversified  Employment. — A  chauffeur,  who  was  em- 
ployed to  drive  his  employer's  pleasure  car,  and  also  a  motor 
truck  in  delivering  merchandise  for  the  employer's  department 
store,  and  who  was  injured  while  repairing  the  pleasure  car, 
which  was  also  used  at  times  in  connection  with  the  department 
store,  was  not  engaged  in  a  hazardous  employment,  so  as  to 
bring  him  within  the  New  York  Act.  "The  employment  of  de- 
ceased was  doubtless  of  a  two-fold  nature;  he  rendered  certain 
services  in  connection  with  his  employer's  business;  he  also 
rendered  other  services  disconnected  with  his  employer's  busi- 
ness; as  a  chauffeur  operating  the  automobile  truck  in  deliver- 
ing merchandise  he  was  engaged  in  a  hazardous  employment 
conducted  by  the  employer  for  the  pecuniary  gain ;  as  a  chauf- 
feur operating  the  touring  car  for  the  pleasure  of  his  employ- 
er's family  he  was  not  engaged  in  a  hazardous  employment  con- 
ducted for  pecuniary  gain.  His  status  was  similiar  to  that  of 
a  cook  or  butler  in  his  employer's  household.85 

While  one  in  the  employ  of  a  fruit  and  produce  storage  com- 
pany might  have  been  entitled  to  compensation  for  an  injury 
received  while  performing  duties  in  connection  with  the  stor- 

32.  Lanigan  v.  Town  of  Saugerties,  180  App.  Div.  227,  167  N.  Y.  Supp. 
654. 

33.  Ten  Broeck  v.  Town  of  Saugerties,  —  N.  Y.  App.  Div.  — ,  167  N. 
Y.  1130,  16.  N.  C.  C.  A.  639. 

34.  Ruane  v.  New  York,  181  App.  Div.   912. 

35.  Winchester  v.  Morris,  179  App.  Div.  600,  166  N.  Y.  Supp.  873. 
2  W.  C.  L.  J.  859. 

251 


§  51  WORKMEN'S  COMPENSATION  LAW 

age  business,  which  was  hazardous,  he  was  not  within  the  act 
while  on  a  trip  to  another  state  solely  for  the  purpose  of  buying 
fruits.36 

Where  an  employee's  work  is  of  a  dual  nature  and  he  was 
injured  in  the  nonhazardous  branch,  he  is  not  within  the  act.37 

In  an  Illinois  case  the  court  said:  "It  was  not  intended  that 
employers  engaged  in  an  extrahazardous  occupation,  but  carry- 
ing on  an  independent  occupation  not  extrahazardous,  should  be 
subjected  to  a  greater  liability  than  other  employers,  engaged  in 
an  occupation  not  hazardous.  The  duties  of  Cannell  (deceased) 
having  no  connection  whatever  with  the  extrahazardous  business 
conducted  by  the  district  at  Lockport,  and  the  sanitary  district 
not  having  elected  to  come  under  the  provisions  of  the  act,  his 
administrator  was  not  entitled  to  compensation."38 

Where  an  employee  is  employed  by  two  different  employers 
and  is  injured,  the  business  of  the  employer  for  whom  he  was 
working  at  the  time  of  the  injury  will  determine  whether  or  not 
he  was  engaged  in  extrahazardous  work.39 

§  51.  Away  from  Plant. — Under  an  act  making  the  work- 
men's compensation  remedy  exclusive  for  injuries  sustained  i" 
the  course  of  the  employment  away  from  the  plant,  or  on  the 
premises  and  at  the  plant,  it  was  contended  that  a  workman  on 
a  ship  away  from  his  employer's  premises  who  was  injured, 
while  repairing  an  engine,  through  the  negligence  of  one  of  the 
ship's  employee's,  could  not  maintain  an  action  at  law,  the 
court  overruling  this  contention  said:  "The  complaint  in  this 
case  is  that  the  deceased  was  injured  while  making  repairs  on 
the  steamship  Hyades  at  Pier  9,  Seattle,  Wash.,  and  away 
from  the  plant  of  the  Standard  Boiler  Works.  For  the  pui- 

36.  Sickles  v.  Ballston   R.    S.  Co.,  171  App.  Div.  108,  156  N.  Y.  Supp. 
864. 

37.  Kramer    v.   Indus.  Ace.   Comm;    31    Cal.  App.  673,   161   Pac.  278, 
14   N.  C.  C.  A.  1083;   Southern   Pac.  Co.,    v.  Pillsbury  170    Cal.  782,  151 
N.  Y.   Supp.     946;     In   re   Sickler   171   N.    Y.  App.  Div.   108,   156    N.  Y. 
Sup.  864. 

38.  Sanitary  District  of  Chicago   v.   Indus.  Bd.  282.  111.  182,118   N.  E. 
475,  16    N.  C.  C.  A.  697,  1  W.  C.    L.  J.  548. 

39.  Bayer  v.  Bayer,  191  Mich.  423,  158  N.  W.  109,  16  N.  C.  (  .  A.  698. 
252 


HAZARDOUS    EMPLOYMENT.  §    53 

pose  of  the  demurrer  this  statement  is  admitted,  and,  if  the 
fact  is  otherwise,  it  must  be  presented  by  answer.  If  the  injury 
causing  the  death  of  Brown  had  been  occasioned  by  reason  of  a 
defect  in  tools  and  apparatus  furnished  and  necessary  for  tho 
execution  of  the  work  in  which  he  was  employed,  there  might 
be  reason  for  the  contending  that  the  'plant'  accompanied  the 
employee  to  the  place  where  the  facilities  of  the  enterprise 
were  to  be  employed,  and  as  between  the  employee  and  the 
employer  the  compensation  act  would  be  conclusive.  But  no 
reasonable  construction,  it  seems  to  me,  can  be  placed  upon  the 
language  employed  by  the  legislature  and  the  general  terms  of 
the  act,  which  determines  that  the  'plant'  accompanies  an  em- 
ployee wherever  he  may  go  to  perform  services  for  his  employer, 
as  against  a  third  party."40 

§  52.  Altering. — The  laying  of  a  water  main  which  consti- 
tuted an  addition  to  one  already  existing,  was  held  to  be  an 
"altering,"  within  the  Wisconsin  Labor  Law  regulating  tho 
work  of  erecting,  altering,  repairing,  or  painting  of  any  house, 
building,  structure,  etc.41 

§  53.  Appliances. — A  moving  picture  machine  is  not  an  appli- 
ance within  the  meaning  of  section  2,  of  the  New  York  Act,  re- 
lating to  the  repair  of  electric  machines  and  appliances,  even 
though  the  picture  machine  was  driven  by  an  electric  motor. 
A  different  question  would  be  presented  if  the  employee  had 
been  injured  by  the  electric  motor  which  operated  the  ma- 
chine.42 

Where  the  act  makes  an  employment  hazardous,  where  such 
employment  includes  the  guarding  of  appliances  for  the  pro- 
tection of  the  public,  a  school  janitor,  whose  duties  include  the; 
caring  for  a  furnace  boiler,  is  engaged  in  the  "guarding  of  appli- 
ances for  the  protection  of  the  public",  (children  in  the 
schoolhouse)  and  automatically  come  within  the  protection  of 
the  compensation  act.48  ,  . 

40.  Martin    v.   Watson   Nav.  Co.,    244   Fed.   976.   16   N.  C.  C.  A.  696 

41.  Kosidowski  v.  Milwaukee,   152  Wis.   225,  139  N.   W.   187. 

42.  Balcolm  v.  Ellintuch    &   Yarfltz.  179  App.    Div.  548. 

43.  East  St.  Louis  Board  of  Education  v.  Indus.  Comm  — 111.  —  1921, 

253 


§  56  WORKMEN'S  COMPENSATION  LAW 

§  54.  Bottling. — Taking  half-barrels  of  beer  from  a  basement 
is  held  to  be  incidental  to  the  bottling  business,  and  within  the 
New  York  Act.44 

§  55.  Brick  Making. — Repairing  machinery  used  to  make 
brick  is  held  to  be  incidental  to  brick  making  and  so  within 
the  New  York  Act.45 

§  56.  Building  Construction,  Repair,  etc. — Paragraph  (B)  of 
section  3  of  the  Illinois  Act  brings  within  the  act  every  em- 
ployer engaged  in  the  building,  maintaining,  repairing  or  de- 
molishing of  any  structure.  "The  employer  must  be  engaged 
in  the  occcupation,  enterprise  or  business,  and  therefore  the 
building,  maintaining  or  reparing  of  a  dwelling  house,  which 
is  neither  .  the  occupation,  enterprise  or  business  of  the  owner 
does  not  bring  him  within  the  Act,  nor  does  the  building  of  a 
sbed  or  other  similiar  structure  by  or  for  a  farmer  come  within 
the  terms  of  the  statute  or  the  legislative  intent.  The  defen- 
dant in  this  case  maintained  a  large  building  let  out  and  used 
for  income,  part  of  it  occupied  as  a  lodge  room,  dance  hall  and 
offices  in  connection,  and  the  maintaining  of  the  building  \vas 
the  business  or  occupation  of  the  defendent.  Such  occupu- 
tion.  enterprise  or  business  is  declared  by  clause  8  of  paragraph 
(B)  of  section  3  to  be  extrahazardous.  If  the  business  of  re- 
pairing such  structure  carried  on  by  the  Wixted  Plumbing 
Company  is  extrahazardous,  as  it  certainly  is,  the  business  of 
maintaining  the  structure  and  causing  its  repair  was  necessari- 
ly of  the  same  character,  and  that  being  the  occupation,  enter- 
prise and  business  of  the  defendent  she  was  under  the  act."40 

An  employer  who  in  'having  rooms  in  his  residence  kalso- 
mined  is  not  engaged  in,  ''construction,  repair,  and  demolishing 
of  buildings  for  profit,"  which  would  bring  such  work  within 
the  enumerated  class  of  hazardous  employments.47 

131  N.  E.  123. 

44..   King  v.  Gross  &  Co.,  179  App.  Div.  966. 

45.  Smith  v.  Washburn   &  Co.,  183  App.  Div.   911,   224  N.  Y.  619. 

46.  Johnson  v.  Choate,  284  111.  214,   119  N.  E.   972,  2  W.  C.  L.  J.  458. 

47.  Hungerford  v.  Bonn,  —  App.  Div.  — ,   171  N.  Y.  280,  2   W.  C.  L. 
J.  682. 

254 


HAZARDOUS    EMPLOYMENT.  §    56 

Construction  of  a  building  to  be  part  of  a  shipbuilding 
plant,  where  the  workman  had  to  pass  a  galvanizing  tank  on  t!i.; 
usual  way  to  the  toilet,  was  an  extrahazardous  occupation.48 

Under  the  Illinois  act,  which  makes  a  person  engaged  in  the 
business  of  erecting,  altering,  etc.,  of  dwelling  houses  liable  to 
the  employees  of  a  contractor  unless  the  contractor  has  provided 
insurance,  a  retail  grocer  having  a  contractor  to  build  a  founda- 
tion under  his  dwelling  house,  disconnected  from  the  store  is  not 
liable  for  injuries  to  the  employees  of  the  contractor  since  the 
grocer  was  not  engaged  in  the  business  of  altering  dwelling 
houses.49 

An  employee  engaged  to  partition  off  a  plant  and  do  otiu-r 
carpenter  work  thereabout  is  not  engaged  in  a  hazardous  occu- 
pation even  though  the  employer's  business  of  preparing  macaroni 
is  considered  hazardous,  for  the  repairing  of  the  building  was 
not  the  business  which  the  employer  was  prosecuting  for  pecuniary 
gain.50 

The  business  of  owning  and  operating  a  loft  building  is  not 
one  of  the  hazardous  employments  embraced  within  the  terms  of 
the  Workman's  Compensation  Law.  But,  it  will  be  noted  that 
group  22  of  the  New  York  Workman's  Compensation  act 
was  amended  by  L.  1916,  C.  622,  so  as  to  include  operation  and 
repair  of  freight  and  passenger  elevators  as  hazardous,  and  that 
group  42  was  amended  by  L.  1917,  C.  705,  by  adding  "main- 
tenance and  care  of  buildings"  as  hazardous  occupations.51 

Where  one's  sole  business  was  the  managing,  maintaining,  and 
keeping  in  repair  some  12  to  15  buildings,  all  except  one  or  two 

48.  Welden  v.  Skinner  &  Eddy  Corporation,  —  Wash.  — ,  174  Pac.  452 
2  W.  C.  L.  J.  859. 

49.  Alabach  v.  Indus.  Comm.,  —  111.  — ,  1920,  126  N.  E.  163,  5  W.  C.  L.  J. 
667. 

50.  Bargey  v.  Massaro  Marconi  Co.,  218  N.  Y.  410,  113  N.  E.  407,  1« 
N.  C.  C.  A.  642.     Affg.  170   N.   Y.  App.  Div.  103,  11  N.  C.  C.  A.  322,  155 
N.  Y.  S.  560,  16  N.  C.  C.  A  644;    Geller  v.  Republic  Novelty  Works,  180 
App.  Div.  762,  168  N.  Y.  S.  263.  16  N.  C.  C.  A.  645. 

51.  Chappelle  v.  Four-Hundred  &  Twelve  Broadway  Co.,  218  N.  Y.  632, 
112  N.  E.  569,  16  N.  C.  C.  A.  668. 

255 


§  58  WORKMEN'S  COMPENSATION  LAW 

of  which  belonged  to  him,  he  was  engaged  in  the  business  of  main- 
taining buildings  and  subject  to  the  Illinois  Compensation  Act.52 

The  casual  engagement  of  a  carpenter  by  the  hour  to  put  shelves 
in  a  store  does  not  make  the  proprietor  engaged  in  structural 
carpentry.03 

A  farmer  employing  help  temporarily  to  make  repairs  on  his 
dairy  barn  was  not  engaged  in  a  hazardous  employment  enumerat- 
ed in  the  New  York  Act  as  "structural  carpentry,"  "roofing," 
and  "construction  and  repair  of  buildings,"  as  he  was  not  en- 
gaged in  that  business  for  pecuniary  gain.54 

The  superintendent  of  an  apartment  building;  who  was  injured 
while  standing  on  a  stepladder  planing  away  a  part  of  a  door, 
which  work  was  a  part  of  his  duties,  was  not  engaged  in  hazardous 
employment  or  structural  carpentry,  or  construction,  repair,  and 
demolition  of  buildings.55 

The  operation  of  a  school  building  is  not  extra  hazardous  under 
.  the  Illinois  Act.56 

§  57.  Butcher  Shop. — The  child  labor  law,  the  woman's  ten 
hour  law  and  city  ordinance  requiring  butcher  shops  to  take 
out  licenses  is  not  such  legislation  or  regulation  as  would  bring 
a  retail  grocery  store  and  butcher  shop,  within  the  employment 
enumerated  as  hazardous  by  reason  of  section  3,  cl.  8,  of  the 
Illinois  Act,  applying  the  act  to  persons  engaged  in  enterprises 
in  which  statutory  or  municipal  ordinance  regulations,  are  im- 
posed for  the  protection  of  employees.57 

§  58.  Cannery. — An  employee  of  a  canning  factory,  injured 
while  gathering  beans  on  land  cultivated  by  the  factory,  was  held 
to  be  within  the  New  York  Act.58 

52.  Storrs  v.  Indus.  Comra.,  —  111.  — ,  121  N.  E.  267,  3  W.  C.  L.  J.  238; 
Johnson  v.  Choate,  284  111.  214,  119  N.  E.  972,  2  W.  C.  L.  J.  458. 

53.  Geller  v.    Republic  Novelty  Works,  180    App.  Div.  762,  168  N.  Y. 
Supp.  263. 

54.  Coleman  v.  Bartholomew,  175  App.  Div.  122,  161  N.  Y.  Supp.  560. 

55.  Schmidt  v.  Berger,  221  N.  Y.  26,  116  N.  E.  382. 

56.  Compton  v.  Indus.  Comm.  —  111.  — ,  (1919),  122  N.  E.  872. 

57.  Dietrich  v.  Indus.  Bd.,  —  111.  — ,  121  N.  E.  226,  3  W.  C.  I,.  J.  248. 

58.  Clarke   v.  Sherman,  184  App.  921. 
256 


HAZARDOUS    EMPLOYMENT.  §   61 

§  59.  Carpenter  Shop. — An  employer  conducting  a  depart- 
ment store,  a  nonhazardous  occupation,  who  had  a  carpenter 
shop  upon  one  floor  and  employed  carpenters  regularly  to  work 
about  the  store,  was  conducting  a  hazardous  occupation  as  far 
as  the  carpenters  were  concerned.80 

A  carpenter  engaged  in  repairing  cars  was  engaged  in  a  haz- 
ardous undertaking.61 

§  60.  Carriers — Carriages. — Common  Carriers  by  land  are  en- 
gaged in  hazardous  occupations  so  as  to  bring  them  within  the 
provisions  of  the  Illinois  act  of  1913.82 

A  teamster  hauling  crushed  stone  for  a  teaming  company 
which  is  engaged  by  another  company  to  haul  the  stone  for  pav- 
ing work,  is  employed  in  the  occupation  of  carriage  by  land.88 

One  engaged  in  pushing  a  handcart  was  not  engaged  as  a 
carrier  by  land,  within  the  meaning  of  the  act.84 

The  driver  of  a  milk  wagon  is  not  engaged  in  "carriage  by 
land,"  so  as  to  bring  him  within  the  act;  his  duties  not  bringing 
him  in  connection  with  any  extrahazardous  feature  of  his  em- 
ployer's business.88 

The  operation  of  vehicles  to  carry  any  person  to  funerals  and 
burials  conducted  by  an  undertaker  does  not  bring  the  business 
within  the  extrahazardous  occupation  of  "carriage  by  land."88 

§  61.  Hauling  Incidental  to  Employers  Business.— The  haul- 
ing of  commodities  as  a  mere  incident  to  the  business  of  the 

60.  Alterman  v.  A.  I.  Mann  &  Son,  —  App.  Div.  — ,   (1919),  179  N.  Y. 
Supp.  584. 

61.  Meyers  v.  La.  Ry.  &  Nav.  Co.,  —  La.  — ,  74  So.  256.  A.  1  W.  C.  L.  J. 
705. 

62.  Chicago  Rys.  Co.,  v.  Indus.  Bd.  276  111.  112,  114  N.  E.  534,  16N.C. 
C.  A.  670. 

63.  Parker-Washington  Co.  v.  Industrial  Board.  274  HI.  498.  113  N.  E. 
976,  14  N.  C.  C.  A.  1079. 

64.  Holtz  v.  Greenhut  &  Co..  175  App.  Div.  878.  162  N.  Y.  8  359.  16  N. 
C.  C.  A.  671. 

65.  Bowman  Dairy  Co.  v.  Industrial  Comm.,  292   111.  284. 

66.  Hochspeier  v.  Industrial  Board.  278  111.  523,   116,  N.  E.  121. 

257 
W.  C.— 17 


§  61  WORKMEN'S  COMPENSATION  LAW 

employer  does  not  constitute  the  employer  a  carrier  by  land, 
within  the  meaning  of  the  Illinois  act.07 

So,  where  a  corporation  was  engaged  in  supplying  water  to 
the  inhabitants  of  a  city,  the  hauling  of  water  to  customers  in 
parts  of  the  city  not  reached  by  the  pipe  lines,  was  a  mere  inci- 
dent of  its  business,  and  did  not  constitute  it  a  carrier  by  land.68 

An  employer  conducting  a  retail  coal  business  who  hires  team- 
sters to  make  deliveries  to  his  customers,  was  not  a  carrier  by 
land.  "The  hauling  and  delivery  of  the  coal  were  mere  incidents 
of  that  business.  Defendant  in  error  was  not  hauling  and  deliver- 
ing coal  for  anyone  but  himself,  and  was  therefore  not  engaged  in 
the  business  or  enterprise  of  carriage  by  land  as  such  dealer  in 
coal.  In  such  business  he  was  neither  a  common  carrier  of  persons 
or  property  nor  a  private  carrier  for  hire.  He  was  simply  con- 
ducting his  own  business  of  a  retail  coal  dealer,  and  the  delivery 
of  the  coal  or  hauling  of  the  same  was  not  the  business  of  the 
defendant  in  error,  but  a  mere  incident  of  it,  as  was  also  the 
hauling  of  the  hay  or  feed  or  any  other  "product  that  was  neces- 
sary or  convenient  in  the  prosecution  of  his  business. "  fl9 

"  'Carriage  by  land,'  under  subdivision  3  of  paragraph  (B),  in 
the  strict,  literal  meaning  of  the  term  might  require  that  it  in- 
clude the  hauling  of  grain  by  team  and  wagon  from  the  farm 
to  the  elevator.  Surely  that  was  not  within  the  legislative  inten- 
tion."70 

The  Illinois  Act  as  it  now  exists  includes  "the  distribution  of 
any  commodity  by  horse-drawn  or  motor  driven  vehicle  where 
the  employer  employs  more  than  three  employees  in  the  enter- 
prise or  business,  except  as  provided  in  sub-paragraph  8"  of 
section  3.71 

67.  Mattoon  Water  Co.  v.    Industrial    Comm.,  291    111.  487;     Fruit  v. 
Industrial  Board,  248,  111.  154;    Hochspeier  v.  Industrial  Board,  278  111.  523. 

68.  Mattoon  Water  Co.,  v.    Industrial  Comm.,    291    111.  487. 

69.  Fruit  v.  Industrial  Board,  284  111.  154,  119  N.  E.  931,  16  N.  C.  C.  A. 
686. 

70.  Uphoff  v.  Industrial  Board,  271  111.  312,  318,  111  N.  E.  128,  L,.  R.  A. 
1916  E,  329,  Ann.  Cas.  1917  D,  1. 

71.  Kurd's  Rev.  St.  111.,  1919,  ch.  48,  sec.  3. 

258 


HA/ARDOUS    EMPLOYMENT.  §    65 

§  62.  Loading  and  Unloading. — ''The  words  'loading  and  un- 
loading,' in  common  use  and  understanding,  apply  as  well  to 
passengers  as  to  freight  and  to  street  railways  as  well  as  to  steam 
railways.  Loading  and  unloading  passengers  on  street  railways 
is  connected  with  the  carriage  of  such  passengers,  and  we  have 
no  doubt  from  the  language  of  the  act,  persons  engaged  in  such 
employment  were  intended  to  be  embraced  within  its  provisions."1 

§  63.  Charitable  Institution. — A  Charitable  institution  does 
not  come  within  the  Massachusetts  Act.73 

§  64.  Chauffeur  Repairing  Family  Car. — One  injured  in  re- 
pairing ;i  family  car  of  an  employer  engaged  in  a  hazardous  occu- 
pation was  held  not  to  be  engaged  in  work  incidental  to  tha 
hazardous  occupation  and  not  within  the  act.1 


Tl 


§  65.  Coal  Business. — Prior  to  the  amendment  of  1916,  con- 
ducting a  coal  yard  was  not  a  hazardous  occupation.75 

In  November  of  1916  coal  yards  were  not  listed  as  hazardous 
occupation  in  the  New  York  Act,  and  one  injured  while  unload- 
ing coal  from  a  car  to  a  wagon  by  coal  falling  upon  him,  could 
not  bring  himself  within  the  act  by  claiming  to  be  operating  a 
wagon,  when  he  was  especially  employed  to  shovel  coal  off  th-j 
car  and  had  nothing  to  do  with  the  operation  of  the  wagon.™ 

One  engaged  in  the  retail  coal  business,  is  not  engaged  in 
an  rxtra hazardous  occupation  bringing  him  within  the  act.  Nor 
does  it  come  within  the  classification  of  carriers  by  land,  whi.:h 
of  itself  would  make  it  an  extra-hazardous  employment.  The  haul- 
ing and  delivery  of  coal  was  a  mere  incident  of  the  employer's 
business.  lie  was  not  engaged  in  the  calling  of  common  carrier 

72.  Chicago  Rys  Co.  v.  Industrial  Board,  114  N.  E.  534,  ,.76  111.  112. 

73.  Zoulalian  v.  New  England  Sanitarium,  7  Benevolent  Ass'n,  —  Mass. 
— .  119  N.  E.  686,  2  W.  C.  L.  J.  267. 

74.  Wincheski  v.  Morris.  179  N.  Y.  App.  Div.  600,  166  N.  Y.  8.  873,  16 
N.  C.  C.  A.  681;  Render  v.  Reineking.  —  N.  Y.  App.  Div.   (1920),  126  N. 
E.  713,  5  W.  C.  L.  J.  870. 

75.  Casterline  v.  Glllen,  182  App.  Div.  105,  169  N.  Y.  S.  345.  16  N.  C.  C. 
A.  646. 

76.  In  re  Hassan,  —  App.  Div.  — ,  172,  N.  Y.  S.  430.  3  W.  C.  L.  J.  181. 

259 


§  68  WORKMEN'S  COMPENSATION  LA\V 

of  persons  or  property  nor  a  private   carrier  for  hire,   but  was 
merely   conducting  his  own  private  business.77 

§  66.  Collector. — A  collector  for  an  employer  engaged  in  the 
manufacture  of  malt  was,  while  in  the  performance  of  his  duties 
as  collector,  shot  and  killed  in  a  saloon  away  from  the  plant,  the 
shooting  being  intentional  and  for  the  purpose  of  securing  money 
which  the  deceased  had  collected.  Affirming  an  award  the  court 
said :  ' '  Under  subdivision  4  of  section  3  of  the  Workmen 's  Com- 
pensation Law,  as  amended  by  chapter  622  of  the  Laws  of  1916, 
Spang  at  the  time  of  his  death  was  within  the  protection  of 
the  act.  That  amendment  was  intended  to  include  '  an  employee 
in  the  service  of  an  employer  carrying  on  a  hazardous  employ- 
ment, even  though  such  employee  is  not  actually  engaged  in  a 
hazardous  employment.'  *  *  *  Dose  v.  Moehle  Lithographic 
Co.,  221  N.  Y.  401,  117,  N.  E.  616,  16  N.  C.  C.  A.  633.  *  *  * 
And  by  the  plain  language  of  the  statute  it  is  immaterial  whether 
the  shooting  of  Spang  occurred  at  the  plant  of  the  employer  'or 
in  the  course  of  his  employment  away  from  the  plant.'  He  was 
clearly  'in  the  course  of  his  employment'  at  the  time  of  his  in- 
jury."78 

§  67.  Commission  Business. — A  commission  business,  conduct- 
ing no  warehouse  in  connection  with  its  establishment  other  than 
its  own  store-room  where  it  held  its  goods  for  sale  and  distribu- 
tion, is  not  a  hazardous  occupation.79 

A  wholesale  produce  commission  merchant  employing  four  or 
'more  men  at  his  place  of  business  comes  within  the  act.80 

§  68.  Construction. — The  term  "construction,"  with  refer- 
ence to  a  building,  means  the  putting  together  of  the  materials 

77.  firuit  v.  Indus.  Bd.,  W4  111.  154,  119  N.  E.  931;  16  N.  C.  C.  A.  680. 

78.  Spang  v.  Broadway  Brwg.  &  Malting  Co.,  182  App.  Div.  473,  169 
N.  Y.  574;  16  N.  C.  C.  A.  637. 

79.  State  v.  J.  P.  Powels  &  Co.,  Inc.  94  Wash.  416,  162  Pac.  569,  16 
N.  C.  C.  A.  690;    Mihm  v.  Hussey,  —  N.  Y.  App.  Div.  — ,  155  N.  Y.  S.  860. 
11  N.  C.  C.  A.  328. 

80.  State  Indus.  Comm.  v.  Voorhees,  —  App.  Div.  — ,  (1920),  184  N.  Y. 
S.  888,  7  W.  C.  L.  J.  238, 

260 


HAZARDOUS    EMPLOYMENT.  §    69 

used  therein.81  The  word  ' '  construct ' '  is  synonymous  with  ' '  erect ' ' 
as  "construction"  is  with  "erection."82 

"The  words  'erection'  and  'construction*  seem  to  be  synony- 
mous in  their  meaning,  and  in  common  acceptance  when  applied 
to  a  house,  they  mean  the  building  of  it  by  putting  together  the 
necessary  material  and  raising  it."88 

It  may  include  work  of  enlargement,84  and  extension.88 

The  word  may  include  maintenance  and  repair  or  alteration,8" 
or  it  may  not,87  depending  upon  the  manner  in  which  it  is  used. 

The  phrase  "the  immediate  doing  of  the  work  of  construction," 
in  a  policy  of  insurance  relating  to  telephone  construction  work, 
was  held  to  include  the  work  of  trimming  a  tree  while  putting  up 
a  line.88 

§  69.  Dairy. — A  dairy  company  engaged  in  distributing  milk  is 
not  engaged  in  carriage  by  land  within  the  meaning  of  the  act  so 
as  to  bring  it  within  the  enterprises  enumerated  as  extrahazard- 
ous  when  it  would  not  otherwise  be  within  this  class.8* 

A  superintendent  of  a  dairy  company's  wholesale  routes  was 
injured  when  alighting  from  a  street  car,  while  enroute  to  reach 
a  place  where  he  was  to  give  a  new  employee  instructions  in  re- 
gard to  his  route.  It  was  held  that  he  was  not  at  the  time  of 

81.  Scharff  v.  Southern  Illinois  Const.  Co.,  115  Mo.  App.  157,  92  S.  W. 
126. 

82.  State  ex  rel.  City  of  Chillicothe  v.  Gordon,  233,   Mo.  383,  135,  S. 
W.  929;    Butz    v.  Murch  Bros.    Const.  Co.,  199    Mo.  279,    97   S.  W.  895; 
McNair  v.  Ostrander,  1  Wash.  110. 

83.  Burke  v.  Brown,  10  Tex.  Civ.  App.  298. 

84.  People  v.  Farmer's  etc.,  Co.,  52  Colo.,  626,  123  Fac.  646. 

85.  Graymount   v.  Stott,  160  Ala.    570,  49    So.  683;    State    ex  rel.  v. 
Miller,  21  Okl.  448,  96  Pac.  747. 

86.  Bell  County  v.  Lightfoot,  104  Tex.  346,  138  S.  W.  381. 

87.  Com.  v.  Hayden,  211  Mass.  296,  97  N.  E.,    783;    State  ex  rel.  T. 
Wilder,  200  Mo.  97,  98  S.  W.  465;   The  O.  H.  Wessels,  177  Fed.  589,  affd.  183 
Fed.  561,  106  C.  C.  A.  107;    Hancock's  Appeal,  115  Pa.  1. 

88.  Camden  Atlantic  Tel.  Co.  v.  United  States  Casualty  Co.,  227  fa. 
242,  75  Atl.  1077.       ' 

89.  Bishop  v.  Bowman  Dairy  Co.,  198  111.  App.  Div.  312,  16  N.  C.  C.  A. 
667. 

261 


§  72  WORKMEN'S  COMPENSATION  LAW 

the  injury  engaged  in  a  hazardous  employment  or  operating  a 
wagon  within  the  meaning  of  the  New  York  Act.90 

§  70.  Decorating1.' — An  employee  was  injured  while  hanging 
a  picture  which  his  employer  had  sold.  This  work  was  merely 
incidental  to  his  regular  employment  and  would  not,  therefore, 
come  within  the  designated  class  of  hazardous  employments  of 
"decorating"  or  "picture  hanging."91 

§  71.  Dredging. — Employees  of  a  corporation  engaged  in 
dredging  upon  navigable  waters,  who  are  employed  solely  upon 
land  are  within  the  Washington  Act.92 

§  72.  Driver. — An  employee  injured  when  putting  away  his 
horse  at  the  end  of  a  day's  work  of  driving  his  truck  in  the  usual 
course  of  a  hazardous  employment  was  held  to  be  within  the  act.93 

A  driver  who  was  killed  while  driving  a  delivery  wagon  fov 
a  partnership  engaged  in  selling  gasoline,  was  sufficiently 
connected  with  the  extrahazardous  employment  of  the  employer 
to  entitle  his  widow  to  compensation  under  the  Illinois  act.94 

Where  the  driver  of  a  motorbus  was  killed  by  falling  therefrom, 
the  death  occurred  while  the  deceased  was  engaged  in  the  opera- 
tion of  an  engine,  and  other  forms  of  machinery  which  is  hazar- 
dous within  the  meaning  of  the  statute.95 

A  teamster  engaged  in  hauling  rock  for  a  construction  com- 
pany is  within  the  act.  The  court  said:  "The  enterprise  cannot 
be  considered  a  mere  incident  to  the  general  business  in  which 
plaintiff  in  error  was  engaged.  It  was  the  busineis  or  enterprise 
itself.  *  *  *  If  it  was  only  the  hauling  of  one  load  of  crushed 

90.  Balk  v.  Queen  City  Dairy  Co.,  —  App.  Div.  — ,  172  N.  Y.  S.  471, 
3  W.  C.  L.  J.  177;  Glatzl  v.  Stumpp,  220  N.  Y.  71,  114  N.  E.  1053. 

91.  Grassell  v.  Broadhead,  175  App.  Div.  874,  162  N.  Y.  S.  42,  16  N. 
C.  C.  A.  684. 

92.  Puget  Sound  Bridge  and  Dredging  Company  v.  Indus.  Ins.  Comm. 
—  Wash.  — ,   (1919)   177  Pac.  788,  3  W.  C.  L.  J.  544. 

93.  Smith  v.  Price,  —  App.  Div.  — ,   153  N.  Y.   S.  221,  9  N.  C.  C.  A. 
712. 

94.  Gibson  v.  Indus.  Bd.,  276  111.  73,  114  N.  E.  515,  16  N.  C.  C.  A.  637. 

95.  Haddad  v.  Commercial   Motor  Truck  Co.,,    (1920)  — La.—,  84  So. 
197,  6  W.  C.  L.  J.  54. 

262 


HAZARDOUS    EMPIX)YMENT.  §    72 

stone  by  a  farmer  or  business  man  who  was  not  engaged  in  con- 
struction or  contracting  work  generally,  undoubtedly  then  the 
proper  conclusion  would  be  to  hold  the  hauling  of  such  single  load 
a  mere  incident  to  the  main  business-  "•• 

The  Supreme  court  of  Illinois  in  holding  that  a  teamster 
was  within  the  provisions  of  the  act  where  the  main  business  was 
hazardous,  said:  "Here  the  duties  of  the  deceased  required 
him  to  work  in  and  around  the  plant  where  the  ice  was  manu- 
factured, and  included  the  loading  of  ice,  and  the  care  of  the 
horses  in  a  large  stable  on  the  premises  of  plaintiff  in  error 
immediately  adjacent  to  the  main  ice  plant.  We  cannot  see  how 
it  can  fairly  be  held  that  the  employment  in  which  the  deceased 
\\;is  engaged  was  not  a  part  of  plaintiff  in  error's  business  or  oc- 
cupation of  manufacturing  and  selling  ice  *  *  *.  The  men  in 
the  buiding  of  plaintiff  in  error  where  the  machinery  was  lo- 
cated and  the  ice  manufactured  were  certainly  within  the  act. 
The  workmen  around  the  building  and  caring  for  the  property 
were  within  the  act.  Those  who^e  duties  took  them  to  the 
plant  to  take  away  the  product  were  within  the  act,  and  we 
can  reach  no  other  conclusion  than  that  the  duties  of  the  de- 
ceased were  of  such  a  nature,  so  related  to  and  connected  with 
the  occupation  of  plaintiff  in  error,  under  the  provisions  of  the 
workmen's  compensation  act,  shall  be  held  liable  for  the  in- 
jury"87 

One  driving  a  wagon,  for  an  employer,  with  his  own  team  for 
delivering  to  customers  of  the  company,  cannot  recover  for  in- 
juries sustained  in  falling  from  the  wagon.  The  court  said: 
"Plaintiff  in  error  contends  that  defendant  in  error  com?s 
within  the  terms  of  the  Compensation  Act  because  it  was  main- 
taining a  structure  within  the  meaning  of  the  act,  and  because 
it  was  engaged  in  carriage  by  landj  and  because  it  was  engaged 
in  a  business  in  which  statutory  and  municipal  ordinance  regu 
lations  were  imposed.  We  held  in  Hochspeier  v.  Industrial 

96.  Parker  Washington  Co.  v.  Indus.  Bd.,  274   111.  498,   113  N.  E.   976, 
14  N.  C.  C.  A.  1097. 

97.  Suburban  Ice  Co.  v.  Indus.  Bd.,  274  III.  630,  113  N.  E.  979.  14  N. 
C.  C.  A.  1080. 

263 


§  72  WORKMEN'S  COMPENSATION  LAW 

Board,  278  111.  523,  116  N.  E.  121,  L.  R.  A.  1918  F,  227  and 
in  Fruit  v.  Industrial  Board,  284  111.  154,  119  N.  E.  913,  that 
the  hauling  of  commodities  as  a  mere  incident  to  the  business 
of  the  employer  does  not  constitute  the  employer  a  carrier  by 
land  within  the  meaning  of  the  Workmen's  Compensation  act. 
We  think  our  holding  in  those  cases  is  decisive  of  the  question 
here  presented.  The  business  or  enterprise  in  which  defendant 
in  error  was  engaged  and  in  which  plaintiff  in  error  was  em- 
ployed when  he  was  injured  was  that  of  supplying  water  to  the 
inhabitants  of  the  city  of  Mattoon.  The  hauling  and  delivery  of 
this  water  are  mere  incidents  of  that  business.  The  fact  that  the 
defendant  in  error  was  maintaining  a  structure  and,  that 
it  had  machinery  at  its  plant  is  not  controlling  here.  Plaintiff 
in  error  was  not  at  the  time  of  his  injury  engaged  in  any  part 
of  the  business  of  defendant  in  error  that  had  to  do  with  ths 
maintenance  or  operation  of  the  plant  or  pipe  lines.  Defendant 
in  error  had  not  elected  to  come  under  the  act,  and  the  injury 
sustained  by  plaintiff  in  error  is  not  one  arising  out  of  or  in 
the  course  of  any  employment  declared  by  the  act  to  be  extrahaz- 
ardous.  Because  some  other  employees  of  defendant  in  error  may 
have  been  engaged  in  some  other  part  of  the  work  that  was  extra- 
hazardous  would  not  change  the  character  of  employment  of 
plaintiff  in  error  or  .bring  him  within  the  provisions  of  the  act. 
This  question  was  discussed  at  length  and  the  conclusion  reached 
in  Vaughn's  Seed  Store  v.  Simonini,  275  111.  477,  114  N.  E.  163, 
Ann.  Gas.  1918B.  713,  288  111.  163,  124  N.  E.  297.  The  record  does 
not  show  that  defendant  in  error  is  engaged  in  a  business  in  which 
statutory  or  municipal  regulations  are  imposed.  Even  if  it  wars 
engaged  in  such  business  in  the  conduct  and  management  of  its 
water  works  plant,  the  injury  did  not  arise  out  of  or  in  the  course 
of  the  employment  of  plaintiff  in  error  in  that  business.  In  order 
to  bring  the  employer  under  the  act  without  election,  it  is  neces- 
sary to  show  that  the  injury  arose  out  of  and  in  the  course  of  em- 
ployment in  which  such  regulations  are  imposed.  Compton  v.  In- 
dustrial Com.,  288  111.  41,  122  N.  E:  872."  °8 

98.    Matton  Clear  Water  Co.  v.  Indus.  Comm.,  —111.—  (1920),  126  N. 
E.  168,  5  W.  C.  L.  J.  671. 

264 


HAZABDOUS    EMPLOYMENT.  §   75 

Under  the  Washington  act  the  operation  of  a  truck  is  not  a 
hazardous  occupation." 

§  73.  Drug  Store. — The  conducting  of  a  drug  store  is  not  a 
hazardous  occupation.1 

§  74.  Elevators. — The  operation  of  ordinary  freight  and  pas- 
sengers elevators  is  not  considered  hazardous  employment.* 

Prior  to  the  amendment  of  the  New  York  act,  an  employee  in 
an  apartment  house  who  was  injured  while  bringing  an  elevator 
from  the  basement  to  the  main  floor  was  denied  compensation.8 

Repairing  the  doors  of  an  elevator  is  incidental  to  its  opera- 
tion.4 

§  75.  Engineering — Lifting  Radiator. — An  employee  engaged 
as  a  general  plumber  and  carpenter  about  an  apartment  house, 
who  was  injured  when  endeavoring  to  obtain  a  radiator  from  a 
storeroom  for  the  purpose  of  installing  it  was  held  not  to  be 
engaged  in  a  hazardous  employment.  The  court  in  construing 
the  New  York  act  said:  "Group  42  of  section  2,  as  it  existed 
in  January,  1916  (Cons.  Laws,  c.  67;  Laws  1914,  c.  41)  specified 
'  plumbing,  sanitary  or  heating  engineering,  installation .  and 
covering  of  pipes  or  boilers.'  The  lifting  of  a  radiator  to  connect 
it  up  for  heating  purposes  was  not  heating  engineering  nor  the 
installation  and  covering  of  pipes  or  boilers.  That  such  work 
was  not  included  within  these  terms  is  evident  for  the  amendment 

99.  Collins  v.  Terminal  Transfer  Co.,  91  Wash.  463,  157  Pac.  1092; 
Guerrieri  v.  Indus.  Ins.  Comm.,  84  Wash.  266,  146  Pac.  608,  8  N.  C.  C. 
A.  440. 

1.  Freess  v.  Kleinau,  —  App.  Div.  — ,  (1919),  179  N.  Y.  Supp.  347,  5  W. 
C.  L.  J.  430. 

2.  Ouenieri  v.  Indus.  Ins.  Comm.,  84  Wash.  266.  146  Pac.  608,  8  N.  C. 
C.  A.  440;  Page  v.  New  York  Realty  Co.,  —  Mont.— (1921),  196  Pac.  871. 

3.  Sheridan  v.   P.  J.  Groll  Const.  Co.,  218    N.  Y.  633,  112  N.    E.   568. 
Revg.  171  App.  Div.  958,  155  N.  Y.  S.  859,  16  N.  C.  C.  A.  669;    Wilson 
v.  C.  Dorflinger  &  Sons,  218  N.  Y.  84,  112  N.  E.  567,  16  N.  C.  C.  A.  670. 

4.  Carey  v.  Frambo  Realty  Co.,  183  App.  Div.  910. 

265 


§  77  WORKMEN'S  COMPENSATION  LAW 

to  the  law  passed  subsequently  and  in  the  same  year.  Laws  1916 
c.  622.  Group  42  was  amended  so  as  to  read  'plumbing'  sanitary 
lighting  or  heating  installation  or  repair;'  and  the  word  'engineer- 
ing' was  dropped.  So,  too,  group  22  was  amended  by  the  same 
act  included  'heating  and  lighting.'  The  words  'maintenance 
and  care  of  buildings'  were  not  added  to  group  42  until  1917. 
Laws  1917,  c.  70S.5 

§  76.  Engineering  Work. — The  word  "work"  is  used  in  some 
of  the  acts  in  the  sense  of  describing  the  active  carrying  on  of 
a  stated  business  or  undertaking;  as  for  instance;  excavating 
work,  engineering  work,  electrical  work,  etc.  In  this  connection 
the  definition  of  the  word  in  the  sense  in  which  it  is  commonly 
used  is  of  little  or  no  value.  As  used  in  the  acts  in  this  manner 
it  does  not  mean  the  labor  bestowed,  but  the  thing  upon  which  the 
labor  is  bestowed.  Engineering  work,  in  which  an  employee  was 
engaged,  "was,  therefore,  a  physical  thing  which  embraced  a  cer- 
tain physical  area.  If  therefore,  the  injured  workman  was  at  the 
time  of  the  accident  employed  on,  in  or  about  the  physical  thing, 
the  engineering  work,  he  came  within  the  act. ' ' 6 

The  work  of  constructing  a  street,  using  in  that  behalf  a  steam 
roller,  is  an  engineering  work.7 

§  77.  Engineering  Works. — The  words  "engineering  works," 
as  is  used  in  the  Oklahoma  statute,  refers  to  establishments  or 
places  of  business  where  engineering  work  is  carried  on,  and 
does  not  refer  to  work  of  an  engineer  on  a  public  highway.8 

The  word  "works"  has  been  construed  as  meaning  an  estab- 
lishment for  manufacturing,  or  for  performing  industrial  labor 
of  any  sort,  and  including  the  building,  machine^',  etc.,  used 
in  required  operation.9 

5.  Krammer  v.  Hawk,  221  N.  Y.  378,  117  N.  E.  576,  16  N.  C.  C.  A.  677. 

6.  Atkinson  v.  Lamb,   (1903)   1  KB  861,  88  LT  789,  72  L.  Y.  K.  B.   46o, 
19  T.  L.  Rep  412. 

7.  Lord  v.  Turner,  114  L.  T.  Jour.  133,  5  W.  C.  C.  87. 

8.  Board  of  Comr's  v.  Grimes,  —  Okla.— ,  182  Pac.  897. 

9.  South  St  Joe  Land  Co  v.  Pitt,  114  Mo.  1 35, 

266 


HAZARDOUS    EMPLOYMENT.  §   79 

An  establishment  for  manufacturing  or  for  performing  indus- 
trial labors.10 

It  is  said  to  have  a  definite  signification,  meaning  a  business 
of  permanent  character,  as  opposed  to  temporary  employment, 
as  used  in  the  particular  instance.11 

§  78.  Ensilage  Cutter. — The  operation  of  a  feed  mill  or  en- 
silage cutter  is  a  hazardous  occupation.12 

§  79.  Enterprise. — "An  enterprise  is  'an  undertaking  of  haz- 
ard; an  arduous  attempt.'  Lexicographers  define  an  enterprise  as 
'an  undertaking;  something  projected  and  attempted;  an  attempt 
or  project,  particularly  an  undertaking  of  some  importance  or 
one  requiring  boldness,  energy  or  perseverance,  an  arduous  or 
hazardous  attempt,  as,  a  warlike  enterprise.'  The  building  of 
this  shed  might  be  classed  under  the  head  of  something  projected 
or  attempted,  but  hardly  as  an  important  undertaking  requiring 
courage  or  energy  or  one  that  was  arduous  or  hazardous.  To  say 
that  the  word  'enterprise'  covered  the  building  of  any  structure, 
however  small,  would  lead,  in  some  instances,  to  absurd  conse- 
quences. A  chicken  coop  or  a  dog  kennel  ten  feet  square  and 
four  or  five  feet  high  would  be  a  structure  in  a  technical  sense 
of  the  term,  but  it  would  hardly  be  contended  that  such  a 
structure  was  within  the  meaning  of  this  act,  according  to  the 
intent  of  the  legislature.  It  is  plain  from  the  use  of  the  word 
'enterprise'  in  other  subdivisions  of  said  paragraph  (B)  that  it 
was  intended  to  mean  a  work  of  some  importance  that  might 
properly  be  considered  arduous  or  hazardous.  The  building  of 
this  sort  of  a  structure  was  hardly  more  hazardous  than  the 
building  of  an  ordinary  board  fence  for  a  farm.  From  any  fair 
construction  of  the  act  the  legislature  never  intended  to  call 
working  on  every  farm  structure,  no  matter  how  small,  as  extra- 
hazardous.  ' '  ™ 

10.  Conroy  v.  Clinton.   158  Mass.   318,  33  N.  E.  526. 

11.  In  re  Pardee's  Appeal,  100  Pa.  408. 

12.  Raney  v.  Indus.  Comm.,  85  Ore.  199,  166  Pac.  523,  16  N.  C.  C.  A. 
875. 

13.  Uphoff  v.  Industrial  Board,  271  111.  312,  111  N.  E.  328.  L.  R.  A.  1910 
E  329.  Ann.  Cas.  1917  D  1. 

267 


§  80  WORKMEN'S  COMPENSATION  LAW 

A  university  is  not  engaged  in  an  "enterprise,"  within  the 
Illinois  Act,  although  it  uses  and  handles  explosives,  inflammable 
fluids  and  molten  metals  in  the  course  of  its  instructions.14 

§  80.  Erection. — One  of  the  primary  definitions  of  the  word 
"erect"  is  "to  raise"  as  a  building;  to  build,  to  construct.15 

"Erect"  means  to  raise  and  set  up  in  an  upright  or  perpen- 
dicular position ;  to  raise,  as  a  building ;  built  or  constructed ; 
and,  in  defining  a  house  as  a  building  erected  for  public  or  pri- 
vate use,  "erected"  applies  to  any  erection,  as  the  construction 
of  a  tent  of  poles  and  canvas  for  private  use,  and  makes  it  a 
house.16 

The  word  "erection,"  used  with  reference  to  building,  means 
the  putting  together  of  the  materials  that  are  used  therein,  the 
putting  together  of  the  brick  arid  mortar,  wood  and  other  materi- 
als making  the  construction.17 

A  statute  of  Wisconsin,  known  as  the  Labor  Law,  provides 
that  a  person  employing  another  in  labor  of  any  kind  in  erecting 
repairing,  altering,  or  painting  of  a  house,  building,  or  structure 
shall  not  furnish  for  the  performance  of  such  labor,  scaffolding, 
hoists,  stays,  ladders,  or  other  mechanical  contrivances  which 
are  unsafe,  etc.  It  was  held  that  the  laying  of  a  water  main  was 
"erecting  a  structure,"  within  the  meaning  of  the  law.18 

Within  the  meaning  of  a  statute  providing  that  every  theatre 
hereafter  erected  shall  be  built  to  comply  with  the  regulations 
prescribed  therein,  it  was  held  that  the  word  "erected,"  as  so 
used  was  synonymous  with  "built,"  and  that  the  statute,  there- 
fore, applied  to  the  alteration  of  a  stable  into  a  theatre,  con- 
sisting of  a  large  part  of  the  stable,  and  using  only  such  parts 
of  the  walls,  etc.,  as  were  suitable  for  the  new  construction.19 

14.  North  v.  Board  of  Trustees,  201  111.  App.  449. 

15.  Butz    v.  Murch   Bros.   Const.    Co.,    199   Mo.   297,   97   S.    W.   895; 
Eichleey   v.  Wilson,   42  Wkly.  Notes  Cas.   (Pa.)   525,  527. 

16.  Favro  v.   State,  39   Tex.  Cr.  Rep.  452,  46  S.  W.  932,  73  Ann.   St. 
Rep.  950. 

17.  Scharff  v.  Southern  Illinois  Const.  Co.,  115   Mo.  App.  157, 

18.  Kosidowski  v.  Milwaukee,  152  Wis.    223,    139  N.  W.  187. 

19.  Greenough  v.  Allen  Theatre   &  Realty  Co.,   33  R.   I.  120,  80  Atl. 
260. 

268 


HAZARDOUS    EMPLOYMENT.  §   80 

"  'And  have  erected  a  regular  station'  means  more  than  the 
erection  of  a  station  house.  The  word  'erect'  may  mean  'to  build' 
or  it  may  mean  'to  set  up'  or  'found'  or  'establish'  or  'insti- 
tute,' according  to  the  context"20 

"Erection"  includes  additions  to  a  building,21  as  the  con- 
struction of  an  additional  story,22  or  the  addition  of  wings,"  or 
a  kitchen.24 

"A  construction  cannot  be  given  to  the  laws  conferring  power 
to  levy  taxes  for  the  'erection  of  public  buildings,'  which  would 
limit  the  exercise  of  the  power  to  the  erection  of  new  houses,  when 
the  object  of  the  law  could  often  be  attained  by  erecting,  at  less 
expense,  additions  to  public  houses  already  built."25 

However,  it  has  been  held  that  every  change,  alteration,  or 
addition  in  or  to  an  existing  structure  does  not  constitute  an 
"erection"  or  construction  of  a  building,  within  the  meaning 
of  a  statute  giving  mechanics'  liens.  The  change  or  alteration, 
it  was  declared,  must  be  such  that  the  whole  structure,  as  changed 
or  altered,  would  commonly  be  regarded  as  another  new  and 
different  building;  and  the  addition  of  a  back  building  to  a  main 
structure  as,  for  instance  a  bathhouse  and  kitchen  to  a  resi- 
dence— is  not  an  erection  or  construction  of  a  building.26 

The  addition  of  a  basement  to  a  frame  house  was  held  not 
to  be  an  erection,  within  the  meaning  of  a  mechanic's  lien  law.27 

While  the  Pennsylvania  cases  hold  that  the  word  "erection" 
as  used  in  the  mechanic's  lien  laws,  does  not  include  repair, 
alteration,  or  addition,  to  houses  or  buildings  already  construct- 

20.  Port  Huron  &  N.   W.  R.  Co.  v.  Richards,  90   Mich.  577,  51   N.  \V. 
680. 

21.  Brown  v.  Graham,  58  Tex.  254. 

22.  Carral  v.  Lynchburg,  84  Va.  803,  6  S.  E.  133;     Driesbach   v.   Kel- 
ler. 2  Pa.  (2  Barr)  77. 

23.  Harman  v.  Cummings,  43  Pa.  (7  Wright)  322;    Nelson  v.  'Jamp- 
bell,  28  Pa.  (4  Casey)  156. 

24.  Delione  v.  Long  Branch  Comr's,  55  N.  J.  L.  108,  25  At!.  274. 

25.  Brown  v.  Graham,  58  Tex.  254. 

26.  Rand  v.  Mann,  (Pa.)  3  Phlla.  429. 

27.  Miller  v.  Oliver,  8  Watts  (Pa.)   514. 

269 


§  81  WORKMEN'S  COMPENSATION  LAW 

ed,28  where  a  building  of  brick  and  frame,  was  removed,  and  after 
its  removal  a  cellar  was  dug  under  it  and  walled  up,  and  a  new 
chimney  built,  and  the  house  newly  weather-boarded  and  plaster- 
ed, it  was  held  to  be  a  building  ' '  erected. ' ' 29 

"Erected,"  as  used  in  reference  to  a  building,  has  been  held 
to  be  synonymous  with  ' '  completed. "  30 

A  building  "erected"  is  quite  distinct  from  a  building  "being 
erected."  To  erect,  when  used  in  connection  with  a  house,  or 
church,  or  factory,  is  to  build;  and  neither  can  be  said  to  be 
erected,  until  they  are  built,  completed. 

On  the  other  hand,  where  a  party,  in  subscribing  for  the  erec- 
tion of  a  building  for  a  university,  agreed1,  that  if  a  building 
should  be  erected  within  a  given  time  worth  a  stipulated  amount, 
he  would  give  $400,  it  was  held  that  it  was  not  essential  that  the 
building  should  be  completed  within  the  time  in  order  that  the 
subscription  should  be  payable;  that  there  is  a  great  difference 
between  erecting  a  building  and  completing  one,  and  that  a  build- 
ing may  be  said  to  be  erected  when  the  walls  are  up  and  the 
material  on  the  ground  to  complete  it.32 

While  the  word  "erection"  has  a  definite  meaning  in  so  far 
as  defining  it  is  concerned,  it  will  be  observed  from  the  cases  re- 
ferred to  that  its  meaning  in  any  particular  instance  depends  to 
an  extent  upon  the  context  and  purpose  of  the  law  or  instrument 
making  use  of  it. 

§  81.  Excavating. — "The  word  'excavating,'  under  subdivi- 
sion 2,  of  paragraph  (B),  might  cover,  technically,  the  digging 
of  a  post-hole  on  a  farm,  but  it  was  certainly  never  so  intended.33 
Digging  of  trenches  by  hand  in  making  private  connections  to 

28.  Appeal  of  Hancock,  115  Pa.  1,    7  Atl.  773;     Appeal  of  Wetmore, 
91  Pa.  276;     Rynd  v.  Bakewell,   87   Pa.  460. 

29.  In  re  Burling's  Estate,  1  Ashm.    (Pa.)  377. 

30.  Hartrath  v.  Holsman,  127  111.  App.  560. 

31.  McGary  v.  People,  45  N.  Y.   153. 

32.  Johnston  v.  Ewing  Female  University,  35  111.   518. 

33.  TJphoff  v.  Industrial  Board,  271  111.  312,  318,  111  N.  E.  328,  L.  R.  A. 
1916  E  329,  Ann.  Gas.  1917  D.  1. 

270 


I1A/.VRDOUS    EMPLOYMENT.  §    83 

a  sewer   is   an   extrahazardous  occupation,    within   the   meaning 
of  a  statute,  which  makes  excavating  extrahazardous.34 

§  82.  Explosives,  etc. — The  business  of  selling  and  delivering 
gasoline  is  extrahazardous,  and  it  is  immaterial  that  the  injury  to 
an  employee  was  not  due  to  the  explosive  character  of  the  pro- 
duct handled  in  determining  whether  or  not  he  was  within  the 
protection  of  the  Compensation  Act.  Thus,  where  an  employee 
fell  from  the  seat  of  an  empty  gasoline  wagon  while  returning 
from  making  a  delivery,  he  was  within  the  act.85 

A  shooting  gallery  is  not  within  a  statutory  provision  relat- 
ing to  the  manufacture,  storing  or  handling  of  explosives,  gun 
powder  or  ammunition.30 

The  use  of  dynamite  in  dangerous  quantity  for  blowing  up 
stumps  in  making  a  road,  which  can  be  done  in  a  few  hours 
time,  and  which  is  seldom  necessary  in  such  work,  is  a  casual 
employment ;  and  a  teamster  employed  to  plow  and  grade  the 
road,  and  who  is  injured  while  assisting  in  the  dynamiting,  can- 
not recover  under  the  Compensation  Act." 

The  use  of  explosives,  such  as  inflammable  fluids  and  molten 
metal,  by  a  university  in  the  course  of  giving  instruction,  is  not 
within  the  Illinois  Act." 

§  83.  Factory. — Under  a  statute  defining  factory  as  "a  place 
where  power  is  used  in  manufacturing,"  the  Kansas  court  held 
that  a  place  where  barrels  were  made,  without  the  use  of  any 
power  other  than  hand  power,  was  not  a  factory.3' 

A  night  engineer  in  a  piano  factory  is  employed  in  a  hazardous 
occupation.40  , 

34.  Scully  v.  Indus.  Comm.,  284  111.  567.  120  N.  E    492,  3  W.  C.  L.  J. 
30. 

35.  Gibson  v.  Industrial  Board.  276  111.  73. 

36.  LJngner  v.  McOrath.  187  App.  Div.  911. 

37.  Mclaughlin  v.  Industrial  Board.  281  111.  100. 

38.  North  v.  Board  of  Trustees.  201  111.   App.  449. 

39.  Menke  v.  Hauber.  99  Kan.  171.  160  Pac.  1017,  16  N.  C.  C.   A.  692. 

40.  Nulle  v.  Hardman.  Peck  &  Co.,  — N.  Y.— .  173  N.  Y.  8.  5536,  J  W. 
C.  L.  J.  343. 

271 


§  90  WORKMEN'S  COMPENSATION  LAW 

§  84    Farming. — Farming  is  not  a  hazardous  occupation.41 

§  85.  Florists. — Where  a  florist  undertakes  to  deliver  flowers 
using  an  automobile  for  that  purpose  he  thereby  brings  his  busi- 
ness within  the  class  of  enumerated  hazardous  employments42 

§  86.  Garbage  Disposal  Plant. — The  fact  that  refuse  may  con- 
tain material  value  for  fertilizing  purposes  does  not  make  the 
dump  a  garbage  disposal  plant  within  the  meaning  of  the  act, 
and  an  employee,  engaged  in  searching  for  rags  among  the 
rubbish,  is  not  employed  in  the  manufacture  of  fertilizers  nor  up- 
on a  garbage  disposal  plant  connected  therewith.43 

§  87.  Garbage  Removal.— The  principal  business  of  the  em- 
ployer being  garbage  removal,  an  employee  whose  sole  work  is 
sorting  on  the  dump,  is  within  the  act.44 

§  88.  Groceries,  Wholesale. — " Wholesale  groceries"  includes 
the  sale  of  groceries  in  bulk  to  grocery  stores  and  restaurants  by 
one  who  conducts  a  retail  store  in  connection  with  such  busi- 
ness.45 

s  89.  Heating. — The  mere  incidental  heating  of  a  saloon  by 
a  self  regulating  boiler  does  not  come  within  the  New  York  provi- 
sion relating  to  heating.46 

§  90.  Hoisting  Apparatus — Hand  Elevator. — Where  it  was 
shown  that  the  room  wherein  deceased  was  employed  contained 
a  movable  elevator  for  raising  and  lowering  heavy  cases  which 

41.  Seggebruch  v.  Indus.  Comm.,  —  111.  — ,  (191S),  123  N.  B.  176,  4  W. 
C.  L.  J.  156. 

42.  Glatzl  v.  Stumpp,  220  N.  Y.  71,  114  N.  E.  1053,  16  N.  C.  C.  A.  645; 
Revg.   174  App.   Div.  901,  159  Supp.  11H5. 

43.  Guiseppi  Toirassi  v.  Harold  B.  Christensen  Jr.,  156  N.  Y.  S.  905, 
171  N.  Y.  App.  Div.  284. 

44.  Sacalli  v.  Marrone,  2  N.  Y.  Bui.  19,  12  S.  D.   R.   543. 

45.  Jurgreau  v.  Scherzer,  185  App.  Div.  920. 

46.  Hermann  v.  Wolff,  4  N.  Y.  Bui.  88,  D.  R   609. 
272 


HA/ARDOUS    EMPLOYMENT.  §    91 

elevator  was  operated  by  hand  power,  while  the  room  adjacent 
contained  power  driven  elevators  upon  which  the  deceased  and 
other  employees  rode  while  in  the  performance  of  their  work,  the 
court  in  granting  a  new  trial  said :  Little  doubt  can  be  enter- 
tained that  the  hand  elevator  is  a  'hoisting  apparatus'  within  the 
meaning  of  the  statute,  and  that  the  stamping  machine  and  the 
power  driven  elevators  are  also  included  in  the  statutory  lan- 
guage. The  fact  that  the  stamping  machine  had  not  been  operated 
for  the  3,  weeks  before  the  accident,  on  account  of  the  strike,  did 
not  remove  it  from  the  class  of  machine  whose  operation  involved 
more  or  less  danger  to  the  employee  in  the  immediate  vicinity.  It 
was  liable  to  be  put  in  motion  at  any  time.  Its  operation  was  not 
permanently  discontinued.  The  applicability  of  the  statute  to  a 
particular  machine  does  not  depend  upon  its  continuous  operation 
while  employees  are  at  work.  The  liability  to  be  put  in  motion 
at  any  time  renders  it  a  dangerous  instrumentality  installed  by 
the  manufacturer  for  the  use  in  his  mill  or  factory."  The  court 
observed,  further,  that  an  employee  was  within  the  protection  of 
the  statute,  "because  his  employment  at  times  brought  him  in 
proximity  to  dangerous  machinery,  though  at  the  time  of  the 
accident  he  may  not  have  been  in  such  proximity.41 

§  91.  Hospital.— "The  mere  conducting  of  a  hospital  for 
treating  injured  and  sick  persons,  as  contented  by  the  appellee, 
is  not,  of  itself,  extrahazardous,  yet  a  hospital  is  named  in  the 
statute  as  one  of  the  enterprise  which  may  become  extrahazard- 
ous when  it  is  conducted  in  a  building  of  such  height  (seven 
stories)  and  in  a  city  where  municipal  ordinance  regulations  are 
or  shall  be  imposed  ' '  for  the  regulating,  guarding,  use  or  the  placing 
of  machinery  or  safeguarding  of  the  employees  or  the  public  there- 
in." It  cannot  be  truly  said  that  conducting  a  hospital  in  a  pop- 
ulous city  like  Chicago,  in  a  seven-story  building  and  under  the 
ordinance  regulations,  such  as  are  imposed  on  appellee,  cannot 
be  extrahazardous,  or  even  hazardous,  if  conducted  in  a  one- 

47.  Morln  v.  Nashua  Mfg.Co.,  — N.  H.— .  103  Atl.  312.  16  N.  C.  C.  A. 
694  This  case  upon  a  former  hearing  was  entitled.  LJzotte  v.  Nashua 
MfK.  Co.,  —  N.  H.  — ,  100  Atl.  757,  16  N.  C.  C.  A.  693. 

273 
W.  C.— 18 


§  94  WORKMEN'S  COMPENSATION  LAW 

story  building  without  such  regulations  and  without  being  sur- 
rounded by  dangerous  machinery,  equipment,  and  appliance,  to 
prevent  serious  accidents,  made  serviceable  or  driven  by  electric- 
ity or  some  other  extraordinary  dangerous  agency.  *  *  * 

"Under  the  evidence  in  this  case  we  think  it  clearly  appears 
that  the  hospital  of  appellee — i.  e.,  the  business  or  enterprise  of 
conducting  a  hospital  by  it  in  the  buildng  with  the  machinery 
appliances,  and  equipment  therein  used,  — is,  in  fact,  extrahaz- 
ardous  within  the  meaning  of  the  statute.  Many  of  its  employees 
are  engaged  in  handling,  repairing,  and  operating  dangerous 
machinery,  equipment,  and  appliances,  and  are  exposed  to  the 
dangerous  agency  or  power  which  drives  or  makes  serviceable 
such  equipment  and  appliances.  Not  only  are  those  employees 
exposed  to  such  dangers,  but  all  other  employees  therein  are  more 
or  less  exposed  to  them.  Extraordinary  care  and  skill  are  re- 
quired in  handling  and  management  of  said  equipment  and  appli- 
ances to  prevent  serious  accidents."48 

§  92.  Hotel. — To  come  within  the  provisions  of  "hotels  having 
fifty  or  more  rooms,"  as  used  in  the  New  York  Act,  it  is  not  es- 
sential that  the  fifty  rooms  be  contained  in  one  building;  they 
may  be  scattered  under  separate  roofs.49 

§  93.  Ice  Harvesting. — Harvesting  ice  for  farm  use  is  not 
within  the  designation  of  "ice  harvesting."50 

§  94.  Installation  of  Water  Tank. — The  installation  of  water 
tanks  does  not  come  within  the  enumerated  classes  of  hazardous 
employments  nor  can  it  be  considered,  to  come  within  the  pro- 
vision covering  the  installation  of  boilers,  engines  or  heavy  ma- 
chinery.61 

48.  Hahnemann  Hospital  v.  Indus.  Bd.  of  111.  282  111.  316,  118  N.  E.  767 
(1918),  IB  N.  C.  C.  A.  666,  1  W.  C.  L.    J.   754,  revg.   205  111.  App.   478. 

49.  Mosher  v.  Luther,  190  App.  Div.  963;     Flannery  v.  Gobel,  17  D.  R. 
586,  3  Bui.  (N.  Y.)  220. 

50.  Mullen  v.  Little,  186  App.  Div.   169. 

51.  Maloney  v.  Levy  &  Gilliland  Co.,  176  App.  Div.  470,   163   N.  Y.  S. 
505,  16  N.  C.  C.  A.  674. 

274 


HAZARDOUS    EMPLOYMENT.  §    97 

§  95.  Junk  Business. — The  operation  of  a  junk  yard,  where 
power  driven  shears  and  acetylene  torch  are  used  is  a  hazardous 
employment.82 

Breaking  up  a  wheel  may  be  incidental  to  the  junk  business.53 
Buying  second-hand  bottles  is  not  dealing  in  junk.84 

§  96.  Logging*. — A  farm  hand,  hauling  a  load  of  logs,  cut 
from  his  employer's  farm,  to  mill,  was  not  within  the  provision 
of  the  New  York  Act  relating  to  logging.  "While  plaintiff,  the 
employee,  would  be  included  within  the  general  language  of  sub- 
division 4,  of  section  3,  as  engaged,  in  a  hazardous  occupation, 
still  it  is  expressly  provided  in  subdivision  4,  of  section  3,  of  the 
act,  that  the  term  'employee'  shall  not  include  farm  laborers  or 
domestic  servants,  so  that  even  if  a  farm  laborer  is  engaged  in 
logging,  he  is  specifically  excepted  from  the  provisions  of  the 
act.  Defendant  and  two  or  three  men  were  getting  out  logs  on 
his  farm ;  and,  merely  because  he  was  going  to  sell  the  lumber 
did  not,  we  think,  take  it  out  of  what  is  generally  understood  to 
be  farm  labor."88 

§  97.  Longshore. — The  fact  that  a  city  dump  was  located 
near  the  shore  does  not  make  a  ragpicker  injured  while  at  work 
in  the  dump,  a  longshoreman  within  the  meaning  of  the  act.5' 

One  injured  while  unloading  stoves  is  not  engaged  in  a  hazard- 
ous occupation  nor  does  he  fall  within  the  class  of  employee  sched- 
uled in  the  New  York  Act  as  longshore.  The  court  said:  "It  is 
clear  that  the  plaintiff  was  not  engaged  in  longshore  work,  nor 
in  the  handling  of  cargoes  nor  was  he  then  engaged  in  the  hand- 
ling of  the  same  in  any  warehouse  or  other  place  of  storage.  It 
is  dear  from  a  reading  of  the  section  that  it  was  the  intention  of 

62  Cinofsky  v.  Indus.  Contra.,  —  111.  — ,  (1919),  125  N.  E.  28«.  5  W.  C. 
I*  J.  185. 

53.  Levine  v.  Gould's  Sons,  (N.  Y.)  14  S.  D.  R.  619,  3  Bui.  78. 

54.  Kronberger  v.  Harlem  Bottle  Co.,  181  App.  Dlv.  900. 
55    Brockett  v.Mietx.   184  App.   Dlv.  342. 

66.  Tomassi  v.  Chriatensen,  171  App.  Div.  284,  156  N.  Y.  S.  905.  16  N. 
O.  C.  A.  678. 

275 


§  98  WORKMEN'S  COMPENSATION  LAW 

the  legislature  to  cover  such  cases  as  might  arise  in  the  removal 
of  cargoes  from  ships  and  docks  to  warehouses,  especially  carried 
on  for  hire.''57 

Nor  is  one  employed  as  watchman  over  cargoes  engaged  in  tho 
work  of  a  longshoreman.58 

§  98.  Maintain. — The  word  "Maintain"  has  been  held  to 
mean  to  support  that  which  has  already  been  brought  into  exist- 
ence ;59  to  hold  or  keep  in  a  particular  state  or  condition,  especial- 
ly in  a  state  of  efficiency;  to  support,  sustain,  not  to  suffer  to  de- 
cline.60 The  word  may  be  used  in  the  sense  of  having  control  and 
custody  of  a  place,61  and  has  been  construed  to  include  the  erec- 
tion of  a  fence,62  and  the  operation  of  an  elevator.63  It  is  frequent- 
ly used  as  meaning  to  keep  in  repair  ;64  but  what  repairs  are  in- 
cluded depends  upon  the  context  of  the  instrument  in  which  it  is 
used.65  It  has  been  held  to  include  the  rebuilding  of  a  bridge 
washed  away  by  an  extraordinary  freshet.66  Cleaning  streets  is 
repairing  or  maintaining  them,  within  a  law  authorizing  designa- 
ted officials  to  construct,  repair  and  maintain  highways.67  The 

57.  GutJheil  v.  Consolidated  Gas  Co.,  94  N.  Y.  Misc.  690,  158  N.  Y.  S. 
622,  16  N.  C    C.  A.  677. 

58.  Oberg  v.   J.  C.  McRoberts  &    Co.,    175  App.  Div.  1,  161  N.  Y.  S. 
934,  16  N.  C.  C.  A.  679. 

59.  Kemdrick    &    Roberts  v.  Warren  Bros.,    110  Md.  47,  72  Atl.   461; 
Coleman  v.  Mississippi  &  Rum  River  Boom  Co.,  114  Minn.  443,  131  N. 
W.  641,  35  L.  R.  A.  (N.  S.)  1109;  Hoar  v.  Hennessy,  29  Mont.  253,  74  Pac. 
452. 

60.  Kovachoff  v.  St.   Johns  Lbr.  Co.,  61  Oreg.   174,   121  Pac.  801. 

61.  State  vt   Ross,   86  Kan.  799',  121  Pac.   908. 

62.  Hoar  v.  Hennessy,  29  Mont.  253,  74  Pac.  452. 

63.  Globe  Ins.)  Co.  v.  Wayne,  75  Ohio  St.  451,  80  N.  E,  13. 

64.  Ferguson  v.  Rochford,  84  Conn.  202,  79  Atl.  177,  Ann.  Gas.  1912  B. 
1212;     Green  River  Asphalt  Co.  v.  St.  Louis;  188  Mo.  576,  87  S.  W.  985; 
Missouri,  K.  &  T.  R.  Co.  v.  Bryan, —  Tex.  — ,  107  S.  W.  572,  citing  Verdin 
v.  St.  Louis,  —Mo.—,  27  S.  W.  447.       , 

65.  Green  River  Asphalt  Co.  v.  St.  Louis,  188  Mo.  576,  87  S.  W.  985. 

66.  Louisville  &  N.  R.  Co.,  v.  United  States  Iron  Co.,  118  Tenn.   194, 
101  S.  W.  414. 

67.  Connor  v.  Manchester,  73  N.  H.  233,  60  Atl.  436. 
276 


HAZARDOUS   EMPLOYMENT.  §    100 

same  is  true  of  such  work  within  the  Illinois  Compensation  Act.68 
"The  first  and  primary  definition  given  to  the  word  'maintain' 
both  in  Webster's  Unabridged  Dictionary,  and  in  Webster's  In- 
ternational Dictionary,  is,  'to  hold,  or  keep  in  any  particular 
state  OP  condition.'*  *  *  The  word  'operate'  does  not  mean 
the  same  thing  as  either  the  word  'construct,'  the  word  'main- 
tain,' or  the  expression  'keep  in  repair,'  and  is  not  included  in 
the  significations  of  either."69 

"The  business  of  washing  windows,  as  such,  in  large  cities 
is  as  much  a  part  of  the  maintenance  of  buildings  as  would 
be  the  replacing  of  glass  in  windows,  the  painting  and  dec- 
orating of  the  buildings,  or  the  repointing  of  the  outside  where 
the  mortar  between  bricks  was  giving  way."70 

§  99.  Manhole  Construction. — Constructing  a  manhole  in  the 
city  streets  is  not  a  hazardous  occupation.71  i 

§  100.  Manufacture. — "Manufacture"  does  not  include  mere 
wholefiale  dealing}  Consequently,  a  dealer  in  dress  trimmings 
does  not  come  within  a  provision  relating  to  the  manufacture 
of  such  articles.72  The  making  of  hat*J  and  feathers  in  a 
millinery  business  is  a  hazardous  employment.78 

Machinery  salesman  required  to  inspect  machinery  in  opera- 
tion, is  employed  in  the  "Manufacturing"  of  machinery,  a  haz- 
ardous employment.74  The  manufacture  of  stock  tonics  is  held  to 
be  manufacture  of  cattle  food,  within  the  New  York  Act.78  Prior 
to  the  amendment  of  the  New  York  Act  to  include  the  manufac- 

68.  Rock  Island  v.  Industrial  Board,  287  111.   76. 

69.  McCheaney  v.  Hyde  Park.  151  111.,  634,  646. 

70.  Chicago  Cleaning  Co.  v.    Industrial    Board,  283  111.  177,  181,    118 
N.  E.  989.  16  N.  C.  C.  A.   683. 

71.  Puget  Sound  Traction  Light  &  Power  Co.  v.  Schleif,  (C.  C.  A.)  220 
Fed.  48,  9  N.  C.  C.  A.  715. 

72.  Kass  v.  Herachberg.  Schultz  &  Co.,  191  App.  Div.  300. 

73.  Saenger  v.  Locks,  N.  Y.  — ,  116  N.  E.  367.  B.  I.  W.  C.  L.  J.  1208. 

74.  Benton  v.  Fraser,  N.  Y.  — ,  114  N.  E.  43,  B.  1.  W.  C    L.  J.  1176. 

75.  Markham  v.  United  Breeders  Co.,  4  S.  D.  R.  390,  175  App.  Dir.  957. 

277 


§  100  WORKMEN'S  COMPENSATION  LAW 

ture  of  dairy  products,  the  court  denied  compensation  for  the 
death  of  an  employee  of  a  grocery  company  resulting  from  blood 
poison  caused  by  an  injury  to  his  hand  while  packing  butter  in 
tubs.76 

A  general  utility  man,  who  was  killed  while  building  a  shelf 
in  a  wholesale  drug  establishment,  was  within  the  provision  of 
thie  New  York  Act  relating  to  the  Manufacture  of  drugs  and 
chemicals.77  An  employee  of  a  retail  druggist  injured  while 
making  glycerite  of  tannin,  a  simple  process  of  heating  glyc- 
erine and  stirring  in  tannin,  was  not  engaged  in  the  manufacture 
of  drugs,  within  the  New  York  Act.78 

A  chef  in  a  hotel,  injured  while  cutting  up  meat  for  distribu- 
tion, was  held  not  to  be  engaged  in  a  hazardous  occupation,  since 
the  preparation  of  food  stuff  as  used  in  Section  2.  of  the  act 
did  not  mean  the  ordinary  preparation  of  meat  or  food-stuff 
for  cooking  purposes,  but  involved  a  preparation  which  either 
changed  the  form  of  the  material  to  render  it  suitable  for  use, 
or  changed  the  nature  of  the  material  for  the  same  purpose.79 

The  commission  is  justified  hi  awarding  compensation  to  an 
employee  who  was  injured  while  handling  plate  glass,  which 
comes  within  the  statutory  enumeration  of  hazardous  employ- 
ments, on  mere  proof  that  he  was  injured  in  such  occupation. 
The  burden  of  showing  that  at  the  time  claimant  was  engaged 
in  merely  packing  glass  which  had  been  sold  to  a  customer,  and 
which  is  an  ordinary  occupation  rested  upon  the  employer,  and 
in  the  absence  of  such  proof  the  award  will  be  upheld.80  The 
word  "moulding,"  as  used  in  the  New  York  act  relating  to  manu- 
facture of  mouldings,  etc.,  does  not  include  the  fastening  of 
mouldings  for  picture  hanging.81  The  manufacture  of  moving 

76.  Pardy  v.  Boomhower  Grocery  Co.,  178  App.  Div.  347. 

77.  Larsen  v.  Paine  Drug  Co.,  169  App.   Div.   838,  218  N.  Y.  252. 

78.  Frees  v.  Kleinau,  190  App   Div.  131. 

79.  De  La  Gardelle  v.  Hampton  Co.,  167  App.  Div.  617,  163  N.  Y.  S. 
162,  9  N.  C.  C.  A.  703.    In  this    connection,  notice  should    be   directed 
to  the  amendment  of  group  34  of  the  New  York  Act,  by  Laws  1917,  ch. 
705,  to  include,  "hotels  having  fifty  or  more  rooms." 

80.  McQueeney  v.  Stuphens  &  Hyer,  167  N.  Y.  App.  Div.  528. 

81.  Grassell  v.  Broadhead,  175  App,  Div.  874,  162  N.  Y.  Supp.  421. 
278 


HAZARDOUS   EMPLOYMENT.  §    103 

picture  films  includes  alteration  and  repair  incidental  to  their 
distribution;82  but  does  not  include  the  taking  of  a  moving  pic- 
ture.83 

The  manufacture  of  trunks  includes  repair  of  trunks  in  retail 
stores  belonging  to  the  manufacturer.84  Likewise,  manufacture  of 
shoes  is  held  to  cover  the  repair  of  shoes  in  shoe  repair  shops.85 

§  101.  Mason  or  Concrete  Work. — One  engaged  in  digging 
under  a  wall  for  the  purpose  of  building  a  pier  is  not  engaged  in 
mason  or  concrete  work  so  as  to  bring  him  within  the  New  York 
Act.86  An  excavation  for  the  purpose  of  erecting  a  pillar  to 
strengthen  an  existing  building  is  incidental  to  the  "concrete 
work,"  within  the  provisions  of  the  act  relating  to  hazardous  em- 
ployment, so  as  to  include  an  injury  to  a  workman  while  making 
the  excavation.87 

§  102.  Meat  Market. — Prior  to  the  amendment  1916,  conduct- 
ing a  meat  market  was  not  considered  a  hazardous  occupation 
under  the  New  York  Act.88 

§  103.  Minor. — The  engagement  of  a  minor  to  work  at  a  haz- 
ardous employment  in  violation  of  the  statute  will  render  the 
compensation  act  inapplicable  in  so  far  as  the  child  is  concerned.89 

82.  McDowell  v.  New  Film  Corp.,  183  App.  Div.  910. 

83.  Michel  v.   American  Cinema  Corp.,  182  N.   Y.    Supp.  588,  6  W.  C. 
L.  J.  375. 

84.  Caplan  v.  Belber  Trunk  &  Bag  Co.,  4  N.  Y.,  Bui.  54,  18  S.  D.  R. 
563. 

85.  Santello  v.  Bell  Bros..  188  App.  Div.  946. 

86.  Morris  v.  Muldoon,  —App.  Div.  —   (1919),  177  N.   Y.  S.  673,  4  W. 
C.  L.  J.  623. 

87.  Morris  v.  Muldoon.  —  App.  Div.  —  (1920)  180  N.  Y.  S.  319,  5  W. 
C.  L.  J.  570. 

88.  Pietha  v.  Murdter,  174  N.  Y.  App.  Div.  764,  161  N.  Y.  Supp.  661, 16 
N.  C.  C.  A.  640. 

89.  Kruczkowski  v.  Polonla  Pub.  Co.,  203  Mich.  213,  168  N.  W.  932,  17 
N.  C.  C.  A.  611;     Waterman  Lumber  Co.  v.  Beatty.  —Tex.  Civ.  App.^» 
204  S.  W.  448.  17  N  C.  C.  A.  614.    See  section,  14,  ante,  Minors. 

279 


§  104  WORKMEN'S  COMPENSATION  LAW 

In  New  York  it  is  held  that  a  child,  injured  while  operating  an 
elevator  in  violation  of  the  Labor  Law,  must  seek  redress  solely 
under  the  Compensation  Act.90 

§  104.  Moving  Picture. — (See  Manufacture.)  The  operation 
of  a  moving  picture  machine  is  not  work  in  connection  with  ' '  elec- 
tric power  lines,  dynamos  or  appliances"  so  as  to  make  it  a  haz- 
ardous employment.  The  court  said :  ' '  The  word  is  used  in  Sec- 
tion 2,  Group  12,  of  the  New  York  Act,  in  connection  with  the  re- 
pair or  operation  of  electric  light  and  electric  power  lines,  dyna- 
mos and  power'  transmission  lines.  Plainly  the  application  of  the 
rule  of  ejusdem  generis  precludes  the  construction  claimed  by  the 
respondent.  The  word  'appliances'  must  be  considered  as  limited 
by  the  words  with  which  it  is  associated.  *  *  *  The  motor  which 
applied  the  current  to  the  moving  picture  machine  might  properly 
be  called  an  appliance  with  the  meaning  of  group  12,  and  had 
the  claimant  been  injured  while  operating  the  motor  a  very  differ- 
ent question  would  be  presented.  It  can  hardly  be  said,  however, 
that  the  machine  to  which  the  electricity  was  applied,  simply  re- 
sulting in  the  machine  being  put  in  motion,  was  an  appliance 
within  group  12.  The  operation  of  the  machine  by  electricity  or 
the  presence  of  electricity  had  nothing  to  do  with  causing  the  in- 
jury to  claimant.  The  injury  would  have  been  sustained  had  the 
machine  been  operated  by  means  of  water  or  any  other  motive 
power.  The  only  connection  between  the  electric  power  and 
claimant's  injury  was  that  electric  power  operated  the  machine 
upon  coming  in  contact  with  which  the  claimant  was  injured.  As 
well  might  it  be  claimed  that  a  person  struck  by  a  revolving 
crank  of  a  washing  machine,  the  operating  power  of  which  was 
electricity,  was  injured  by  an  electrical  appliance.  Cars  and 
machinery  of  all  kinds  are  operated  by  electricity  yet  it  cannot 
be  said  that  such  mere  consumers  of  electric  current  are  them- 
selves electrical  appliances."91 

90.  Robilotto  v.  Bartholdi  Realty  Co.,  104  Misc.  419. 

91.  Balcom  v.  Ellintuch  &    Yarfitz,  179  App.  Div.  548,    166    N.  Y.  S. 
841,  16  N.  C.  C.  A.    681. 

280 


HAZARDOUS   EMPLOYMENT.  §    104 

§  105.  Mining — Quarrying. — The  word  "mining"  is  often 
used  in  a  very  broad  sense,  and  in  sucli  sense  it  includes  quarry- 
ing, as,  for  instance,  of  slate  from  an  open  quarry.92  The  term 
includes  the  whole  mode  of  obtaining  metals  and  minerals  from 
the  earth.98 

"Taking  ore  from  the  surface  of  the  earth  or  shallow  pits  is 
as  much  mining  as  if  it  were  dug  from  deep  mines.94  It  is  some- 
times expressly  used  as  covering  and  including  sinking,  drilling, 
boring,  and  operating  wells  for  petroleum  and  natural  gas.95  The 
procurement  of  coal  by  digging  in  the  earth  is  termed  "min- 
ing."96 "Mining  operation"  has  to  do  with  the  working  of  a 
mine,  and  a  "mine,"  defined  as  an  excavation  in  the  earth  for  the 
purpose  of  getting  metal  ores  or  coal,  does  not  include  an  oil 
well.9T 

"Quarry"  is  not  properly  applicable  to  the  comparatively 
slight  excavation  on  land  made  primarily  for  purposes  of  con- 
struction there  on,  and  not  primarily  for  the  purpose  of  disposing 
of  the  rock,  or  stone  or  other  material  taken  out.  It  is  similar 
to  a  mine,  in  the  sense  that  the  material  removed,  be  it  mere 
rock,  or  stone,  or  valuable  marble,  is  removed  because  of  its 
value  for  some  other  purpose  and  in  the  sense  that  it  is  not  re- 
moved for  the  purpose  of  improving  the  property  fiom  which  it  is 
taken.  It  is  distinguished  from  a  mine  in  the  fact  that  it  is  usual- 
ly open  at  the  top  and  front,  and  the  ordinary  acceptation  of  the 
term,  in  the  character  of  the  material  extracted.98 

"Pits"  is  synonymous  with  "Quarry,"  signifying  a  large 
opening  in  the  earth  from  which  rock  or  ores  are  taken.99  So, 

92.  Burdick  v.  Billion,  144  Fed.  737.  75  C.  C.  A.  603;     In  re  Mathewa 
Consol.  Slate  Co.,  144  Fed.  724. 

93.  Williams  v.  Toledo  Coal  Co.,  25  Oreg.  426. 

94.  Coleman  v.  Coleman,  1  Pearson  (Pa.)  470. 

95.  Consumer's  Gas  Trust  Co.  v    Quinby,  137  Fed.,  882.  70  C.  C.  A. 
220;     State  v.  Indiana  &  Ohio  O.,  G     &  M.  Co.   120  Ind.  575,  22  N.    E. 
778.  6  L  R.  A.579. 

96.  Escoot  v.  Crescent  Coal  &  Nav.  Co.,  56  Oreg  190,  106  Pac.  452. 

97.  Guffey  Petroleum  Co.  v.  Murrel.  127   IA.  466,  53  So.  705. 

98.  Ex  parte  KeJso,  147  Cal.  609.  82  Pac.  241.  109  Am.  St.  Rep.  178. 

99.  Guffey  Petroleum  Co.  v.  Murrel.  127  La,  466,  53  So.  705. 

281 


§  108  WORKMEN'S  COMPENSATION  LAW 

' '  coal  bed ' '  may  be  used  in  the  sense  of  ' ' quarry. "  x  " Working  the 
quarry ' '  means  the  workng  of  the  pit,  and  the  doing  of  any  work 
necessary  for  the  proper  and  convenient  use  of  the  pit,  such  as 
the  removal  of  earth,  debris,  water,  ice,  or  snow,  would  be  work- 
ing the  quarry  as  truly  as  the  blasting  and  removal  of  the  slate.2 

§  106.  Night  Watchman. — Where  a  night  watchman's  duties 
included  the  firing  of  boilers  and  filling  of  glue  vats  he  was  an 
employee  engaged  in  a  hazardous  employment.3  A  night  watch- 
man in  a  bakery  at  a  time  when  it  was  not  in  operation  was  not 
engaged  in  a  hazardous  employment.4 

§  107.  Oil  and  Gas  Wells.— Prior  to  the  amendment  of  1916, 
to  the  New  York  Act,  the  operation  of  oil  or  gas  wells  was  not 
considered  a  hazardous  occupation.5 

§  108.  On,  In,  Or  About. — The  words  "on,  in,  or  about,"  as 
appear  in  some  of  the  a<cts,  are  used  in  reference  to  area.  The  act 
may  sometimes  apply  in  a  particular  case  by  the  area  of  the  fac- 
tory, plant  or  work  following  or  continuing  with  the  employee  to 
the  place  of  accident  on  account  of  the  nature  of  the  work.6 

By  the  Workmen's  Compensation  Act  of  England,  1897,  it  was 
necessary  that  the  employment  should  be  "on,  in,  or  about"  the 
works  of  the  employer.  The  words  were  held  to  refer  to  locality, 
and  restricted  the  liability  of  the  employer,  confining  it  to  such 
accidents  as  happened  on,  or  in,  the  premises  where  the  business 

1.  Hoysradt  v.  Delaware,  L.  &  W.  R.  Co.,  151  Fed. 321. 

2.  Miller  v.  Chester  Slate  Co.,  129  Pa.  81. 

3.  Hellman  v.  Manning   Sand  Paper  Co.,   — N.  Y.  App.  Div. — ,  162  N. 
Y.  S.    335,  B.  I.  W.  C.   L.  J.  1335. 

4.  Fogarty  v.  National  Biscuit  Co.,  N.  Y.  App.  161  N.  Y.  S.  937,  B.I. 
W.  C.  L.  J.  1379. 

5.  Tillburg  v.  McCarthy  &  Townsend,  170  App.  Div.  593,  166  N.  Y.  S. 
878;     Bacon  v.  McCarthy  &  Townsend,  179  App.  Div.   965,  166  N.  Y.  S. 
880,  16  N.  C.  C.  A.   675,     Nor  a  butter  maker.  Pardy  v.  Boomhower  Gro- 
cery Co.,  178  N.  Y.  App.  Div.  347,  164  N.  Y.  9.  775,  16  N.  C.  C.  A.  676, 

6.  Atkinson  v.  Plumb,   (1903),  1  K.  B.  861,  88  L.  T.  789,  72  L.  J.  K. 
B.  460,  199  L.   Rep.  412,  51  W.  R.  516,  5  W.  C.  C.  106. 

282 


HAZARDOUS   EM1'IA)YMENT.  §    109 

of  the  employer  was  carried  on,  or  at  places  in  close  contiguity 
thereto.  Several  attempts  were  made  to  induce  the  courts  to 
construe  the  words  as  applying  to  the  description  of  work  men- 
tioned, and  thus  including  the  business  carried  on  instead  of  the 
place  where  it  was  carried  on.  These  attempts  were  unsuccessful, 
for  in  Powell  v.  Brown  (1899),  1.  Q.  B.  157,  79  L.  T.  631,  68  L.  J. 
Q.  B.  151,  15  T.  L.  Rep.  65,  the  court  declared  its  view  that  the 
words  must  refer  to  locality,  and  locality  only.  The  House  of 
Lords  subsequently  adopted  the  same  view  in  Black  v.  Dick  Kerr 
&  Co.,  (1906)  A.  C.  325,  94  L.  T.  802,  75  L.  J.  K.  B.  569,  22  T.  L. 
Rep.  548.7 

In  proceedings  under  the  Kansas  workmen's  compensation 
act  it  was  held  that  where  a  miner  was  killed  while  passing  across 
a  railroad  track  enroute  from  one  mine  to  another  at  the  direc- 
tion of  his  foreman  he  was  not  killed  in  the  course  of  his  em- 
ployment in  a  hazardous  occupation,  where  there  was  no  showing 
that  there  was  any  connection  between  the  operation  of  the  two 
mines  other  than  that  of  ownership,  or  that  the  employee  had 
taken  a  previously  defined  route  or  that  the  accident  happened  to 
the  deceased  while  he  was  working  "on,  in,  or  about"  a  mine 
within  the  meaning  of  the  act.' 

§  109.  Same — Plant — Factory. — Where  an  employee  engaged 
in  driving  a  delivery  truck  from  his  employer's  plant  in  Kansas 
City,  Kansas,  to  its  customers  in  that  city  and  in  Kansas  City. 
Missouri,  and  was  injured  in  Kansas  City.  Mixsouri.  In  holding 
that  there  could  be  no  recovery  unless  plaintiff  was  injured  "on, 
in.  or  about"  the  defendant's  factory  or  packing  house,  obser- 
ving that  the  word  "about"  was  one  of  locality  and  not  of  mere 
association  or  connection  the  court,  said:  "An  effort  is  made  to 
bring  the  case  within  the  statute,  as  it  has  already  been  construed 
by  the  argument  that  the  truck  which  the  plaintiff  was  driving, 
being  a  portion  of  the  equipment  used  in  conducting  the  defend 

7.  Rues*.  Employers'   LJa.  and  Workmen's  Comp..    (8th  ed).  374-375. 

8.  Bevard  v.  Skidmore  Patterson  Coal  Co,,  101  Kan.  207,  165  Pac.  657. 
16  N.  C.  C.  A.692:     Alvarado  v.  Flower  Bros.  Rock  Crusher  Co..  —Kan.— 
1921,  197  Pac.  1091. 

283 


§  113  WORKMEN'S  COMPENSATION  LAW 

ant's  business,  was  itself  a  part  of  the  factory.  To  support  this 
view  expressions  are  quoted  tending  to  show  that  the  truck  was 
a  part  of  the  plant.  The  term  '  plant, '  however,  is  quite  different 
from  'factory.'  It  may  well  apply  to  appliances  used  in  carrying 
on  the  business,  wherever  situated.  'Factory'  by  the  statute  is 
restricted  to  the  premises  where  (mechanical)  power  is  used  in 
manufacturing  or  preparing  articles  for  sale.  The  truck  was  an 
instrument  for  the  distribution  of  the  finished  product  rather 
than  of  its  manufacture  or  preparation.  While  in  charge  of  the 
truck,  after  the  meat  had  been  prepared,  the  plaintiff  was  not 
'within  the  danger  zone  necessarily  created  by  those  peculiar 
hazards  to  workmen,  which  inhere  in  the  business  of  operating 
the  packing  house."9 

§  110.  Operation — Engines. — One  engaged  in  firing  a  boiler 
used  for  heating  purposes  in  an  apartment  house  comes  within 
that  class  of  employees  enumerated  as  being  engaged  in  haz- 
ardous occupations.10 

§  111.  Pile  Driving. — The  driving  of  sheeting  down  into  the 
sand  for  the  protection  of  municipal  baths  is  a  hazardous  occupa- 
tion, and  the  fact  that  at  the  moment  of  the  injury  the  employee 
might  have  been  doing  something  more  incidental  to  the  making 
of  baths  than  the  driving  of  the  sheeting  into  the  sands,  is  imma- 
terial.11 

§  112.  Plastering. — Plastering  an  apartment  house  was  held 
not  to  be  a  hazardous  occupation.12 

§  113.  Pleasure  Club. — The  court  in  holding  that  a  corpora- 
tion, organized-  for  the  purpose  of  acquiring  a  hunting  preserve 
was  within  the  act  when  it  engaged  in  a  hazardous  occupation 

9.  Hicks  v.  Swift  &  Co.,  101  Kan.  760,  168  Pac.  905,  16  N.  C.  C.  A.  634. 

10.  Siegreth  v.  Goldberg,  175  App.  Div.  452. 

11.  Mazzarisi  v.  Ward  &  Tully,   170  App.  Div.   868,  156  N.  Y.   Supp. 
964,  16  N.  C.  C.  A.  674. 

12.  iSblomon  v.  Bonis,  181  App.  Div.  672,  167  N.  Y.  S.  676,  16  N.  C.  C. 
A.   675. 

284 


HAZARDOUS   EMPLOYMENT.  §    114 

said:  "I  cannot  believe  that  any  membership  corporation  which 
sees  fit  to  engage  in  a  hazardous  business  carried  on  by  it  for 
pecuniary  gain,  can  be  heard  to  plead,  in  defense  of  a  claim  for 
compensation  by  an  employee  injured  in  such  employment,  that  it 
had  no  legal  right  to  engage  in  such  employment,  or  to  employ 
its  injured  or  deceased  employee  therein.  The  fact  that  engaging 
in  such  occupation  was  ultra  vires  furnishes  no  immunity  what- 
ever, either  to  the  employer  or  insurance  carrier."1 

In  affirming  the  appellate  division's  decision  the  court  of  ap- 
peals said:  "The  commission  has  found  that  the  appellant  was 
engaged  in  the  operation  of  a  country  club  and  in  connection 
therewith  in  the  business  of  ice  harvesting,  forestry  and  logging ; 
that  it  conducted  this  business  for  pecuniary  gain ;  that  Uhl  was 
at  the  time  of  his  death  employed  by"  it  as  a  lumberman  and 
while  so  employed  was  killed.  "We  think  there  was  ample  evi- 
dence to  support  these  findings.  Whether  a  club  or  an  individ- 
ual owning  a  tract  of  woodland  is  or  is  not  engaged  in  forestry 
and  logging  for  pecuniary  gain  is  a  question  of  degree.  It  could 
not  be  said  that  the  owner  of  a  city  lot  who  cut  a  tree  and  sold 
the  timber  was  so  engaged.  Nor  where  a  farmer  here  and  there 
felled  trees  on  his  farm.  But  where  the  owner  of  a  large  tract 
of  woodland  cuts  and  sells  the  lumber  upon  it  regularly,  al- 
though that  work  may  be  incidental  to  his  main  business,  he 
comes  within  the  definition  of  the  statute."14 

A  Golf  Club  maintained  exclusively  for  golf  and  social  pur- 
poses, supported  by  dues,  conducting  its  restaurant  at  a  loss,  and 
not  declaring  nor  expecting  to  pay  dividends  is  not  engaged  in 
a  "business  for  pecuniary  gain"  and  therefore  does  not  come 
within  the  act.18 

§  114.  Power  Machinery.— "The  Washington  act  does  not 
say,  nor  does  it  imply,  that  every  place  in  which  power-driven 

IS.  Uhl  v.  Hartwood  Clubt  177  App.  Dlv.  41.  163  N.  Y  S.  744,  16  N.  C. 
C.  A.  886. 

14.  Uhl  r.  Hartwood  Club,  221  N.  T.  568,  116  N.  B.  1000,  16  N.  C.  C. 
A.  686. 

15.  Francisco  v.  Oakland  Golf  Club.  —App.  Div.—  (1920).  185  N.  Y.  S. 
97,  7  W.  C.  L.  J.  229. 

285 


§  114  WORKMEN'S  COMPENSATION  LAW 

machinery  is  employed  impresses  an  extrahazardous  character  on 
work  to  be  performed  in  such  place.  It  merely  employs  the  cir- 
cumstance of  the  presence  of  power-driven  machinery  in  connec- 
tion with  a  number  of  other  things  in  defining  a  workshop.  If 
the  presence  of  power-driven  machinery  is  the  sole  determining 
factor,  then  every  shaft  in  which  is  operated  a  power-driven 
elevator  or  lift  is  a  workshop.  Then,  also,  the  operator  of  the 
elevator  and  every  employee  of  appellant  who  in  the  course  of 
his  duties  had  occasion  to  enter  the  elevator  to  pass  from  one 
floor  to  another  would  be  employed,  for  the  time  being,  in  a  room 
or  place  wherein  power-driven  machinery  is  employed,  hence  a 
workshop,  and  in  an  extrahazardous  work."  Though  the  re- 
spondent was  injured  in  a  place  where  power-driven  machinery 
was  employed,  it  cannot  by  the  widest  stretch  of  the  meaning  of 
the  statute  be  termed  a  workshop.  Though  his  regular  employ- 
ment was  at  times  fraught  with  hazard,  as  are  all  employments, 
it  was  not  one  which,  to  use  the  language  of  section  2  of  .the 
act,  has  'come  to  be,  and  to  be  recognized  as  being  inherently  and 
constantly  dangerous. '  Neither  was  it  connected  with  any  of  the 
occupations  enumerated  as  extrahazardous  in  section  2,  nor  is  it 
mentioned  in  any  of  the  schedules  in  section  3,  or  in  any  of  the 
classification  in  section  4. 

"Neither  the  work  of  a  janitor  in  an  office  building  nor  work- 
ing in  or  about  an  elevator  shaft  has  yet  bee'ni  classified  by  the 
department  as  extrahazardous,  nor  has  any  rate  of  contribution 

been  fixed."16 

• 

A  handy  man  employed  in  all  parts  of  a  business  engaged  in 
the  manufacture  of  hydrogen  peroxide  and  other  chemical  prep- 
arations employing  electric  power-driven  machinery  was  en- 
gaged in  an  extrahazardous  occupation  within  the  protection  of 
the  act.17 

An  electric  power  company,  operating  street  railways  comes 
within  the  Texas  act.  in  so  far  as  pertaining  to  the  employees  en- 

16.  Remsnider  v.  Union  Savings  &  Trust  Co.,  89  Wash.  87,  Ann.  Gas. 
1917D,  40,  154  Pac.  135,  16  N.  C.  C.  A.  695. 

17.  Hydrox  Chemical  Co.  v.  Indus.  Comm .,—  111.—,  (1920),  126  N.  E. 
564,  5  W.  C.  L.  J.  811. 

286 


II A/.ARDOUS   EMPLOYMENT.  §    115 

gaged  iii  operating  the  electric  power  department  of  its  Imsi 
ness.18 

§  115.  Private  Railroad. — Wlieu  the  Minnesota  Workmen's 
Compensation  Act  was  amended  by  Chapter  193,  Laws  of  1915, 
so  as  to  exclude  employees  of  all  railroad  companies  operating 
steam  railroads  as  common  carriers,  the  legislative  intent  was 
that  private  steam  railroads  not  engaged  as  common  carriers 
should  remain  therein,  in  the  absence  of  an  express  election  not 
to  be  bound  by  the  act.10 

§  116.  Process  Server. — A  process  server  for  a  street  railway 
company  is  not  sufficiently  connected  with  the  hazardous  em- 
ployment of  the  company  to  entitle  him  to  compensation  for  an 
injury  sustained  while  riding  on  one  of  its  cars  for  his  own  con- 
venience.20 

§  117.  Road  Building. — Work  on  a  state  highway  is  not  ordi- 
narily considered!  a  hazardous  occupation.21  The  building  of  an 
ordinary  dirt  road  is  not  an  extra  hazardous  occupation,  nor  is 
it  work  in  connection  with  a  structure  within  the  meaning  of  the 
act.22  Roadbuilding  when  accompanied  with  the  use  of  large 
quantities  of  explosives,  is  considered  extrahazardous.- 

§  118.  Salesman. — The  fact  that  the  employer  is  conducting  a 
hazardous  employment,  will  not  operate  to  bring  a  traveling 

18.  Eastern  Texas  Electric  Co.  v.  Woods,  —Tex.  Civ.  App.  — .  (1921), 
230  S.  W.  498. 

19.  State  ex  rel.  Winston-Dear  Co.  v.  District  Court  of  St.  Louis  Co., — 
Minn.  — ,  176  N.  W.  749,  5  W.  C.  L.  J.  711. 

20.  Brown  v.  Richmond  Light  A  R.  Co..  173  App.  Div.  432.  159  N.  Y.  8. 
1047,  16  N.  C.  C.  A.  637. 

21.  Board  of  Commissioners  of  Kingfisher  County  v.  Grimes.  —  Okla.  — . 
(1919)    182  Pac.  897,  4  W.  C.  L.  J.  636;     Brennan   v.   Indus.  Coram.  — 
111.  — .  (1919).  124  N.  E.  297.  4  W.  C.  L.  J.  603. 

22.  McLaughlin  v.  Indus.  Bd.  281.  111.  100.  117  N.  E.  819.  16  N.  C.  C.  A. 
682,  1  W.  C.  L.  J.  504. 

23.  McLaughlin  v.  Indus.  Bd.  of  111.,  281  111.  100.  117  N.  E.  819,  16  N. 
C.  C.  A.  677.  1  W.  C.  L.  J.  504. 

287 


§  122  WORKMEN'S  COMPENSATION  LAW 

salesman  from  the  employer's  plant  within  the  terms  of  the  New 
York  Act  so  as  to  entitle  him  to  compensation  for  an  injury  re- 
ceived while  riding  in  a  bus  visiting  customers.24  One  employed 
to  sell  sewing  machines,  deliver  and  set  them  up  in  the  pur- 
chasers' place  of  business  was  not  engaged  in  a  hazardous  employ- 
ment.25 

§  119.  Sewer  Construction. — "To  come  within  the  act,  a 
workman  must  be  employed  in  one  of  the  various  classes  of  enter- 
prises named  in  the  statute,  and  that  enterprise  must  be  conduc- 
ted for  the  purpose  of  business,  trade  or  gain,"  therefore  a  city 
constructing  a  sewer  did  not  «ome  within  the  provisions  of  the 
Kansas  Act.28 

§  120.  Slaughter  and  Packing  House. — The  business  of  a  re- 
tail grocer  who  also  butchers  cattle,  sheep  and  hogs  at  a  slaugh- 
ter house  operated  in  another  place,  for  sale  to  his  retail  cus- 
tomers, and  who  at  his  grocery  store  cuts  the  meat,  makes  sau- 
sage and  renders  lard  from  such  animals  for  sale  in  a  small  way, 
is  not  engaged  in  the  business  of  operating  a  slaughter  and  pack- 
ing house  within  the  meaning  of  schedule  "n"  of  section  18,  of 
the  "West  Virginia  Workmen's  Compensation  Law.27 

§  121.  Smoke  Stack  Wrecking. — Wrecking  a  smoke  stack  is 
extrahazardous  employment.28 

§  122.  Stable. — A  city  ordinance  regulating  the  width  of 
stalls  and  passageways  in  private  livery,  sale  or  boarding  stables 
does  not  apply  to  the  stable  of  an  employer  engaged  in  the  dis- 
tribution of  dairy  products  so  as  to  make  such  business  extra- 
hazardous  within  the  meaning  of  the  Illinois  act.20 

24.  Mandel  v.  Steinhardt  &  Bro.,  173  App.  Div.  515,  160  N.  Y.  S.  2, 
16  N.  C.  C.  A.  642. 

25.  Singer  Sewing  Mach.  Co.,  v.  Indus.  Comm.  —  111.  — ,  (1921),  129 
N.  E.  771. 

26.  Redfern  v.  Eby,  —  Kan.  — ,  170  Pac.  800,  16  N.  C.  C.  A.  668. 

27.  Williams  v.  Schehl.  —  W,  Va.  — ,  (1919),  100  S.  E.  280,  4  W.  C.  L. 
J    759. 

28.  American  Steel   Foundries  v,  Indus.  Bd.  of  111.,  284  111.    99,  119  N. 
E.  902. 

29.  Bowman  Dairy  Co.  v.  Indus.  Comm.— 111.— ,   (1920),  126  N.  E.  596, 
5  W.  C.  L.  J.  786. 

"288 


IIA/ARDOUS    EMPLOYMENT.  §    122 

§  123.  Storage. — ''The  expression  'storage  of  all  kinds  and 
storage  for  hire'  implies  that  if  an  employer  is  storing  his  own 
property  he  may  be  engaged  in  a  'hazardous  employment.'  But 
the  question  in  this  and  other  similar  cases  is  to  determine  under 
what  circumstances  the  employer  is  engaged  in  the  'employment' 
of  storing  his  own  property,  it  is,  of  course,  impossible  to  enun- 
ciate a  rule  applicable  to  all  cases.  Each  case  as  it  arises  must 
largely  be  determined  with  reference  to  its  own  facts.  It  may 
be  difficult  in  some  cases  to  draw  the  line  of  demarcation.  It 
seems  quite  clear,  however,  that  in  a  case  like  the  .present,  where 
a  merchant  is  not  holding  his  stock  of  goods  or  any  part  thereof 
with  reference  to  any  future  requirements  of  the  market  or  busi- 
ness contingency,  but  is  endeavoring  to  sell  the  same  to  his  cus- 
tomers and  is  immediately  offering,  and  exposing  the  same  for 
sale  in  the  ordinary  course  of  his  business,  such  a  person  is  not 
engaged  in  the  'employment'  of  storage."30 

It  has  been  held  that  a  general  storage  and  warehouse  business 
is  not  so  extrahazardous  in  character  as  to  warrant  the  industrial 
Commission  of  Washington  to  declare  it  to  be  within  the  Compen- 
sation Act  as  amended  by  the  Washington  Laws  of  1919,  c.  131.81 

A  produce  dealer  who  incidentally  stores  his  fruits,  vegetables, 
etc.,  is  not  within  a  provision  covering  "storage  of  all  kinds." 
"He  was  carrying  on  the  business  of  a  produce  dealer,  limited  to 
a  few  domestic  fruits  and  vegetables,  for  pecuniary  gain,  and 
whatever  of  storage  was  involved  in  the  transaction,  it  was  in- 
cident to  this  business  of  dealing  in  produce."82 

One  engaged  as  a  "junk  dealer  in  bottles  and  storage"  is  not 
engaged  in  a  hazardous  occupation  nor  does  he  come  within  the 
New  York  Act  designation  of  "storage  of  all  kinds  and  storage 
for  hire"  the  bottles  being  only  stored  for  sale.33 

Conducting  a  coal  yard  does  not  come  within  the  definition  of 
storage,  thereby  becoming  a  hazardous  occupation,  where  the 

30.  In  re  Roberto,  180  App.  Div.  143.  167  N.  Y.  Supp.  397. 

31.  State  v.  Eyres  Storage  &  Distributing  Co,  —  Wash.  — .  198  Pac. 
390.  (1921). 

32..     Dugan  v.  McArdle,  184  App.  Div.  570.  172  N.  Y.  Supp.  27. 
33.    Kronberger   v.  Harlem   Bottle  Co.,    181   N.  Y.  App.  Div.  900.    167 
Supp.   400.  16  N.  C.  C.  A.  687. 

289 
W.  C.— 10 


§  125  WORKMEN'S  COMPENSATION  LAW 

dealer  is  not  holding  the  coal  for  any  future  requirements  of  the 
market  or  business  contingencies  but  is  endeavoring  to  sell  the 
same  to  his  customers.34 

Storage  in  connection  with  a  retail  store  for  the  purpose  of 
immediately  disposing  of  the  goods  is  not  such  storage  as  is  con- 
templated by  the  provisions  of  the  statute  making  storage  a 
hazardous  occupation.85 

§  124.  Street  Railway. — A  corporation  operating  a  street 
railway  is  engaged  in  an  extrahazardous  occupation.36 

§  125.  Structure. — The  term  structure  has  been  defined  to  be 
"a  building  of  any  kind,  but  chiefly  a  building  of  some  size  and 
magnificence ;  an  edifice. '  '37  While  the  word  may  cover  a  great 
variety  of  form  and  construction,  yet  when  used  in  connection 
with  the  words  "house"  and  "building,"  it  is  evidently  intended 
to  simply  describe  a  variety  of  building.38  It  includes  that  which 
is  built  or  constructed,  an  edifice  or  building  of  any  kind,  any 
piece  of  work  artificially  built  up  or  composed  of  parts  joined  to- 
gether in  some  definite  manner.39  It  may  include  work  below  as 
well  as  above  ground.40  Laying  a  water  main  was  erecting  a 
"structure,"  within  the  meaning  of  the  Wisconsin  Labor  Law, 
providing  that  a  person  employing  another  in  labor  of  any  kind 
in  erecting,  repairing,  or  painting  of  a  house,  buildings,  or  struc- 
ture shall  not  furnish  for  the  performance  of  such  labor,  scaffold- 

34.  Roberto  v.  John  F.  Schmadeke,  Inc.,  180  N.  Y.  App.  Div.  143,  167 
N.  Y.  S.  397,  11  N.  C.  C.  A.  687. 

35.  Walsh  v.  F.  W.  Woolworth  Co.,  180  App.  Div.  120,  167  N.  Y.  S.  394, 
16  N.(  C.  C.  A.  689;  Dugan  v.  H.  J.  McArdle,  Inc.,  184  App.  Div.  570,  172 
N.  Y.  Supp.  27,  2  W.  C.  L.  J.    919. 

36.  McCahe  v.  Brooklyn  Heights  R.  Co.,  177  N.  Y.  App.  Div.   107,  162 
N.  Y.  Supp.  741,  16  N.  C.  C.  A.  669. 

37.  Conley  v.  Lackawanna  Iron  &  Steel  Co.,  94  App.  Div.  149,  88  N.  Y. 
Supp.  123;  Anderson  v.  State,  17  Tex.  App.  305;  Favro  v.  State,  39  Tex. 
Cr.  Rep,  452,  46  S.  W.  .932,  73  Am.  St.  Rep.  950. 

38.  Conley  v.  Lackawanna  Iron  &  Steel  Co.,  94  App.  Div.  149,  88  N.  Y. 
Supp.  123. 

39.  Lewis  y.  .State,  69  Ohio  St.  473,  69  N.  E.  980. 

40.  Kosidowski  v    Milwaukee,  152  Wis.  223,  133  N.  W.  187. 
290 


HA/.AKPOI  s    KMl'LOYMENT.  §    125 

ing,  hoist,  stays,  ladders,  or  other  mechanical  contrivances  which 
are  unsafe,  etc.41  The  word  has  been  held  to  include  a  car,42  a 
derrick,48  an  oil  well  derrick,4*  a  machine,45  an  aqueduct,46  a 
canal,47  a  dirt  fill,48  a  sky  sign  erected  on  the  roof  of  a  building,49 
a  fence,50  a  bay  window,51  a  railroad,52  elevated  railroad  tracks," 
electric  poles  and  wires,54  a  mine  or  pit  sunk  within  a  mining 
claim,55  passageways  in  mines,50  a  vessel  in  course  of  construc- 
tion,57 a  sea-going  vessel  in  dry  dock  for  repairs,58  a  vessel 
to  the  sides  of  which  iron  plates  .were  being  attached,59  a  boiler 

41.  Kosidowski  v.  Milwaukee,  152  Wis.  223,  139  N.  W.  187. 

42.  Corbett  v.  New  York  Cent.  &  H.  R.  R.  Co.,  151  App.  Div.  159,  135 
N.  Y.  Supp.  137;  Caddy  v.  Interborough  Rapid  Tr.  Co.,  125  App.  Div.  681, 
110  N.  Y.  Supp.  162.  195  N.  Y.  415,  88  N.  E.  747,  30  L.  R.  A.   (N.  8.)  30. 

43.  Stevens  v    Stanton  Const.  Co.,  153   App.   Div.  82,  137  N.   Y.  Supp. 
1024;   Kosidowski  v.  Milwaukee,  152  Wis.  223,  139  N.  W.  187. 

44.  Showalter  v.  Lowndes,  56  W.  Va.  462,  49  S.  E.  448,  3  Ann.  Cas. 
1096.  Citing  Loonie  v.  Hogan,  9  N.  Y.  435,  61  Am.  Dec-  683;  Lyon  v.  Mc- 
Guffey,  4  Pa.  126,  45  Am.  Dec.  675. 

45.  Hardaway  v.  Southern  Rl  Co.,  90  S.  C.  475,  73  S.  E.  1020,  Ann.  Cas. 
1913D,  266. 

46.  Nash  v.  Com.,  174  Mass.  335,  54  N.  E.  865. 

47.  Pacific    Rolling  Mill  Co.  v.   Bear  Valley  Irr.    Co.,  120    Cal.  94,  52 
Pac.  136.  65  Am.  St.  Rep.  158. 

48.  Clement's  Adm'rs.  v.  Putman,  68  Vt.  285,  35  Atl.  181. 

49.  New  York  v.  Wineburgh  Advertising  Co.,  122  App.  Div.  748,  107 
N.  Y.  Supp.  478;    Kobbe  Co.  v.  New  York,  122  App.  Div.  755,  107  N.  Y. 
Supp.  489. 

50.  Karasek  v.  Peier,  22  Wash.  419,  61  Pac.  33,  50  L.  R.  A.  345. 

51.  State  v.  Kean,  69  N.  H.  122,  45  Atl.  256,  48  L.  R.  A.  102. 

52.  Giant  Powder  Co.  v.  Oregon  Pac.  R.  Co.,  42  Fed.  470,  8  L.  R.  A.  700; 
Ban  v.  Columbia  Southern  R.  Co.,  117  Fed.  21,  54  C.  C.  A.  407;    New  York. 
N.  H.  A  H.  R,  Co.  v.  New  Haven,  70  Conn.  390,  39  Atl.  597. 

53.  Flanagan  v.  Carlin  Const.  Co.,  134  App.  Div.  236,  118  N.  Y.  Supp. 
953. 

54.  Forbes  v.    Willamette  Falls  El.  Co..  19  Oreg.  61.  23  Pac.  670,  20 
Am.  St.  Rep.  793. 

65.    Helm  v.  Chapman,  66  Cal.  291,  5  Pac.  352.     Contra,  Williams  v. 
Mountaineer  Gold  Min.  Co.,  102  Cal.  134,  34  Pac.  702. 

56.  Jackson  v.  Yak  Mining.  M.  *  T.  Co.,  51  Colo.  551.  119  Pac.  1058. 

57.  Chaffee  v.  Union  Dry-Dock  Co.,  68  App.  Div.  578,  73  N.  Y.  Supp.  908. 

58.  Gruner  v.  Texas  Co.,  133  App.  Div.  413,  117  N.  Y.  Supp.  741. 

59.  Herman  v.  Fitzgibbons  Boiler  Co..  136  App.  Div'  286.  120  N.   v . 
Supp.  1074. 

291 


§  126  WORKMEN'S  COMPENSATION  LAW 

and  engine,  built  in  the  basement  of  a  building  and  constructed 
on  permanent  foundations,  the  boiler  being  inclosed  by  a  brick 
wall.60 

An  oil  well,  with  derrick,  engine,  boiler,  pumps,  piping,  and 
appliances  attached  thereto,  was  held)  to  be  a  structure.61  It  has 
been  held  that  the  word  "structure"  does  not  include  a  commoto 
dirt  road,02  a  town  site,03  a  mine,64  a  boiler,65  a  railroad,6" 
a  spillway  in  connection  with  a  dam,07  a  moving  train  of  cars,68 
the  building  of  a  broom-corn  shed  on  a  farm,60  swings  or  seats  in 
a  dancing  hall,70  a  fence  enclosing  a  railroad  right-of-way,71  a 
building  after  it  has  been  torn  down.72 

ii_ 
§  126.    Subway. — Under  the  New  York  Act  a  city  is  engaged 

in  a  hazardous  employment  when  it  is  constructing  a  subway, 
irrespective  of  the  definition  of  the  word  "employment"  given  in 
the  act.73 

60.  Phoenix  Ins.  Co.  v.  Luce,  11  Ohio  Cir.  Ct.  Rep.  476,  5  O.  C.  D.  210. 

61.  Haskell  v.  Gallagher,  20  Ind.  App.  224,  50  N.  E.  485,  67  Am.  St.  Rep. 
250. 

62.  McLaughlin  v.  Industrial  Board,  281  111.  100,  117  N.  E.  819. 

63.  Armitage  v.  Bernheim,  —  Idaho  — ,  187  Pac.  938. 

64.  Williams  v.  Mountaineer  Gold  Min.  Co,  102  Cal.  134,  34  Pac.  702. 

65.  Conley  v.  Lackawanna  Iron  &  Steel  Co.,  94  App.  Div.  149,  88  N.  Y. 
Supp.  123. 

66.  Massillon  Bridge  Co.  v.  Cambria  Iron  Co.,  59  Ohio  St.  179,  52  N.  E. 
192. 

67.  McMillen  v.  Mart,  —  Tex.  — ,  149  S.  W.  270. 

68.  Lee  v.  Barkhampsted,  46  Conn.  213.     The  court  in  this  case  said, 
in  part:     "We   think  the   railroad  track   would  be  a  structure.     But  the 
track  was  not  the  cause  of  the  injury,  even  as  claimed  by  the  defendants, 
but  appearance  and  noise  of  the  moving  train  on  the  track  was  the  cause, 
and  this  cannot  well  be  construed  as  a  part  of  the  structure.    The  latter 
word  in  its  connection,  being  a  structure  'placed  on  such  road,'  obviously 
refers  to  some  permanent  stationary  erection,  rather  than  to  a  moving 
car  or  locomotive  engine." 

69.  Uphoff  v.  Industrial  Board,  271  111.  312,  111  N.  E.  328,  L.  R.  A. 
1916E,  329,  Ann.  Cas.  1917D,  1. 

70.  Lothian  v.  Wood,  55  Cal.  159. 

71.  State  v.  Walsh,  43  Minn.  444,  45  N.  W.  721. 

72.  Mulligan  v.  State,  25  Tex.  App.  199,  7  S.  W.  664,  8  Am.  St.  Rep.  435. 

73.  Sexton  v.  Public  Service  Commission,  City  of  New  York,  —  N.  Y. 
App.  Div.  — ,  167  N.  Y.  S.  493,  16  N.  C.  C.  A.  668. 

292 


HAZARDOUS   EMPLOYMENT.  jj 

§  127.  Threshing  Machine. — One  engaged  iu  feeding  a  thresh- 
ing machine  which  is  not  a  hazardous  occupation  cannot  claim  to 
be  within  the  act  on  the  ground  that  he  is  engaged  in  operating  a 
vehicle,  since  the  feeding  did  not  begin  until  the  machine  became 
stationary.74 

One  employed  to  feed  a  bean  thresher,  engaged  in  threshing 
beans  for  various  farmers  at  their  respective  farms,  and  who 
injured  his  finger  while  pushing  the  thresher  into  a  barn,  was 
allowed  compensation.78 

§  128.  Undertaking. — The  business  of  undertaking  is  not  an 
extrahazardous  occupation  and  an  employee  injured  while  driv- 
ing for  another  undertaking  establishment  could  not  be  consid- 
ered as  engaged  as  a  common  carrier  by  land  in  order  to  bring 
him  within  the  act.76 

§  129.  Upholstering — Carpet  Laying. — The  laying  of  carpets 
is  not  upholstering  and  cannot  be  considered  such  in  order  that 
it  would  bring  the  injured  employee's  occupation  within  the  class 
designated  as  hazardous.77 

§  130.  Vehicles. — The  provision  of  the  New  York  Act  relating 
to  the  operation  of  vehicles,  includes  an  express  man  while  deliv- 
ering a  package  from  his  vehicle  ;78  a  helper  on  a  motor  truck, 
while  chasing  mischievous  boys;70  a  taxicab  starter,  injured  by 
slipping  on  a  hotel  stairway  ;80  a  driver  removing  barrels  from 
his  employer's  basement;81  a  driver  putting  his  horse  in  its 

74.  Vincent  v.  Taylor  Bros.,  180  App.  Div.  818,  168  N.  Y.  S.  287,  16  N. 
C.  C.  A.  673,  1  W.  C.  L.  3.  692. 

75.  Hennessey  v.  Markendorf,  222  N.  Y.  647. 

76.  Hochspeier  Inc.  v.  Indus.  Bd..  278  111.  523,  116  N.  B.  121,  16  N.  C. 
C.  A.  665. 

77.  Strader  v.  Stern  Bros.,  184  App.  Div.  700,  172  N.  Y.  Supp.  482,  3  W. 
C.  L.  J.  191. 

78.  Miller  v.  Taylor,  173  App.  Div.  865. 

79.  Hendricks  v.  Seenian  Bros.,  170  App.  Div.  133. 

80.  David  v.  Town  Taxi  Co.,  175  App.  Div.  968. 

81.  King  v.  Grosg  &  Co.,  179  App.  Div.  966. 

293 


§  130  WORKMEN'S  COMPENSATION  LA\V 

stall  ;82  a  driver  helping  to  repair  a  hand  elevator  which  he  used 
in  delivering  his  load  into  a  basement  ;83  but  a  driver  for  a  coal 
and  wood  firm  injured  while  splitting  wood,  is  not  included  with- 
in the  phrase  ' '  operation  of  vehicles ; '  '84  nor  is  an  employee  who 
has  nothing  to  do  with  the  operation  of  the  vehicle,  but  whose 
duty  in  connection  with  the  vehicle  is  merely  loading  it  ;85  nor  is 
a  driver,  injured  while  making  deliveries  afoot,  several  hours 
after  putting  up  his  horse;86  nor  is  the  driver  of  a  florist's  wagon 
while  adjusting  a  window  box  for  a  customer,  such  work  being 
in  no  way  connected  with  the  duties  of  a  driver  ;87  nor  is  a  super- 
intendent of  milk  routes  while  on  his  way  by  street  car  to  a  route 
where  he  was  to  instruct  a  new  driver.88 

An  elevator  is  not  a  vehicle,  within  the  meaning  of  this  provi- 
sion.89 Nor  is  a  hand  sled,90  nor  a  hand  truck.91 

A  driver  of  a  truck  used  in  collecting  dirt  from  city  streets  was 
engaged  in  the  operation  of  vehicles,  which  is  a  hazardous  em- 
ployment.92 

A  policeman  who,  for  his  own  convenience,  was  riding  with  a 
truck-man  not  in  the  employ  of  the  village,  and  who  was  injured 
while  alighting,  was  not  at  the  time  engaged  in  a  hazardous  occu- 
pation within  the  meaning  of  the  Compensation  Act.93 

A  salesman  riding  a  motor  cycle  furnished  by  his  employer  for 
use  in  his  work  is  engaged  in  a  hazardous  employment.94 

82.  Smith  v.  Price,  168  App.  Div.  421. 

83.  Kasper  v.  Clark  &  Wilkins  Co.,  175  App.  Div.  958. 

84.  Casterline  v.  Gillen,  182  App.  Div.  105. 

85.  Hassen  v.  Elm  Coal  Co.,  184  App.  Div.  715;  Roberto  v.  Schmadeke, 
180  App.  Div.  143. 

86.  Newman  v.  Netwman,  169  App.  Div.  745,  218  N.  Y.  325. 

87.  £Uatzel  v.  Stumpp,  141  App.  Div.  901,  220  N.  Y.  71. 

88.  Balk  v.  Queen  City  Dairy  Co.,  184  App.  Div.  631. 

89.  Wilson  v.  Dorflinger  &  Sons,  218  'N.  Y.  84. 

90.  Rice  v.  All-Package  Grocery  Stores,  4  N.  Y.  Bui.  130,  19  S.  D.  R. 
473. 

91.  Holtz  v.  Greenhut  &  Co.,  175  App.  Div.  878. 

92.  Putman  v.  Murray,  174  App.  Div.  720. 

93.  IS|pinks  v.i  Village  of  Marclus,  108  N.  Y.  App.  Div.  732. 

94.  Mulford  v.  A.  IS.  Pettit  &  Sons,  220  N.  Y.  540,  lilfl'N.  K  344,  ±5.  1 
W.  C.  L.  J.  1203. 

294 


HA/AKIKHS    K.MI'I.OYMKNT.  §    132 

An  employee  traveling  with  a  threshing  machine,  although  such 
work  is  not  enumerated  as  a  hazardous  occupation  it  comes  under 
the  classification  of  vehicles  and  is  within  the  compensation  act.95 

A  snow  scraper  was  heTd  to  be  a  vehicle  within  the  meaning  of 
the  New  York  act  making  the  operation  of  vehicles  a  hazardous 
occupation.96 

An  employee,  engaged  solely  in  the  care  of  horses  used  by  a 
company  to  draw  its  wagons  is  engaged  in  the  operation  of  wag- 
ons, which  entitles  him  to  compensation  equally  with  the  actual 
drivers.07 

§  131.  Vessels — Unloading. — A  weigher  of  hides  as  they  were 
unloaded  from  vessels  was  engaged  in  a  hazardous  occupation.9" 

The  operation  of  vessels  includes  loading  and  unloading  of 
•  •Is,  within  the  New  York  Act.  \Vhen  the  employer  and  owner 
is  a  New  York  Corporation,  there  is  a  presumption  that  the  vessel 
is  not  one  of  another  state  or  country.09 

§  132.  Warehouse. — "A  warehouseman  in  the  general  accep- 
tation of  the  term  is  one  who  receives  and  stores  goods  of  others 
as  a  business,  and  for  a  compensation  or  profit.  And  it  has  been 
held  that  the  fact  that  one  receives  no  compensation  for  storage 
tends  to  show  that  he  is  not  a  warehouseman."1 

The  Illinois  constitution  of  1871,  art.  13,  sec.  1,  provides  that 
"All  elevators  or  storehouses  where  grain  or  other  property 
is  stored  for  a  compensation,  whether  the  property  stored  be  kept 
separate  or  not,  are  declared  to  be  public  warehouses." 

One  engaged  in  Illinois  in  storing  grain  for  a  compensation 

96.  White  v.  Loades,  178  App.  Div.  236,  164  N.  Y.  Supp.  1023.  16  N.  C. 
C.  A.  673. 

96.  Berg  v.  Hetzler  Bros.,  179  App.  Div.  551,  166  N.  Y.  Supp.  830,  16  N. 
C.  C.  A.  672. 

97.  Costello  v.  Taylor,  —  N.  Y.  — -,  111  N.  E.  755,  11  N.  C.  C.  A.  320. 

98.  Hiers  v.  John  A.    Hull  &  Co.,  178    App.  Div.  350,    164    N.  Y.  S. 
767,  B.  1  W.  C.  L.  J.  1337. 

99.  Edwardsen  v.  Jarvig  Lighterage  Co.,  168  App.  Div.  368, 
1.     27  R.  C.  L.,  p.  950,  Sec.  2. 

295 


§  132  WORKMEN'S  COMPENSATION  LAW 

in  an  elevator  and  its  appurtenances,  is  a  public  warehouseman.2 
It  is  also  held  in  Illinois,  however,  that  a  building  in  which  a 
meat  corporation  stores  its  products  pending  their  sale  and  dis- 
tribution to  local  dealers  is  a  "warehouse  or  general  or  terminal 
storehouse,"  within  the  meaning  of  the  Workmen's  Compensation 
Act,  although  no  goods  are  stored  for  the  public  for  hire.3 

"Nor  can  it  be  limited  so  as  to  apply  only  to  a  building  where 
the  public  can  send  their  goods  to  be  stored  for  them,  as  in  the 
case  of  the  large  furniturf  repositories.  The  word  is  applicable 
to  a  building  used  by  the  owner  for  the  storage  of  his  own  goods, 
though  it  has  no  connection  of  any  sort  with  water  transit. 
*  *  *  While  it  may  be  difficult  to  define  'warehouse,'  I  am 
of  the  opinion  that,  as  used  in  the  Act  of  1897,  it  involves  the 
idea  of  a  place  normally  of  considerable  size,  mainly  used  for  the 
storage  of  goods  in  bulk  or  in  large  quanitities,  and  in  which 
consequently  the  dangers  incident  to  the  handling  of  goods  in 
bulk  or  in  large  quantities  might  naturally  arise. ' ' 4 

"I  think  that,  upon  the  admitted  facts  as  stated  to  us,  there 
was  clearly  a  prima  facie  case  that  these  premises  were  a  ware- 
house. The  premises  were  used  for  the  purpose  of  breaking  up 
old  iron  for  sale.  Very  large  quanities  of  old  iron  were  kept 
stored  in  large  covered  sheds  upon  the  premises."5 

A  warehouse  used  by  a  corporation  for  the  storing  and  vending 
of  its  commodities  which  contains  an  electric  elevator  and  is 
located  in  a  city  which  regulates  by  ordinance  the  use  and  opera- 
tion of  elevators,  is  an  extra-hazardous  enterprise,  within  the 
Illinois  Act  of  1913.° 

Under  the  Warehouse  Act  of  Oregon,  a  warehouse  is  a  place 
where  any  of  the  commodities  enumerated  in  the  Act  are  received 
on  storage  for  the  owner  by  some  one  engaged  in  the  general  busi- 
ness of  receiving  such  goods  in  store  for  profit  or  compensation.7 

2.  National  Bank  v.  Langan,  28  111.  App.  401. 

3.  Armour  &  Co.  v.  Industrial  Board,  275  111.  328,  114  N.  E.   173. 

4.  Green  v.  Britten,  6  W.  C.  C.  82. 

5.  Wilmott  v.  Paton,  4  W.  C.  C.  65. 

6.  Armour  &  Co.  v.  Industrial  Board,  197  111.  App.  363. 

7.  State  v.  Stockman,  30  Oreg.  36,  46  Pac.  851. 

296 


HAZARDOUS   EMPLOYMENT.  §    133 

It  has  been  held  that  a  general  storage  and  warehouse  business 
is  not  so  extra-hazardous  in  character  as  to  warrent  the  Industrial 
Commission  of  Washington  to  declare  it  to  be  within  the  Compen- 
sation Act  as  amended  by  the  Washington  Laws  of  1919,  c.  131.8 

A  retail  furniture  company  which  maintained  a  warehouse  for 
the  storage  of  its  furniture,  from  which  distribution  was  made  to 
its  customers  was  engaged  in  a  hazardous  occupation  and  was 
automatically  brought  within  the  provisions  of  the  act  in  the 
absence  of  any  affirmative  action  on  its  part  to  reject  the  act, 
therefore  a  truck  driver  engaged  in  delivering  from  the  warehouse 
at  the  time  of  a  collision  between  his  truck  and  a  street  car  came 
under  the  protection  of  the  act.9 

Where  the  operation  of  a  warehouse  in  connection  with  docks 
and  wharves  was  essentially  dangerous,  it  was  held  to  be  hazard- 
ous employment.10 

§  133.  Window  Cleaning1. — While  washing  windows  is  not 
specifically  enumerated  as  one  of  the  hazardous  employments,  it 
does  come  within  the  enumerated  class  of  "building,  maintaining, 
repairing  or  demolishing  of  any  structure,  which  the  legislature 
has  seen  fit  to  classify  as  extrahazardous."11 

In  holding  that  a  window  washer  who  was  injured  in:  the 
course  of  his  employment  was  entitled  to  compensation  under 
the  New  York  act  the  court  said :  ' '  The  commission  properly 
disregarded  the  objection  and  made  the  award.  It  was  held  in 
the  case  of  Matter  of  Miulford  v.  Pettit  &  Sons,  220  N.  Y. 
540,  116  N.  E.  540,  116  N.  E.  344  (1917),  as  to  an  accidental 
injury  happening  in  July,  1915,  tjiat  an  employee  while  en- 
gaged in  a  hazardous  employment  which  was  incidental  to  the 
nonhazardous  business  of  his  employer  was  entitled  to  com- 

8.  State  v.  Efcrres  Storage  &  Distributing  Co.,— Wash.— ,  198  Pac.  390, 
(1921). 

9.  Friebel  v.  Chicago  Ry.  Co.,  280  111.  76,  117  N.  E.  467.  13  N.  C.  C.  A. 
390. 

10.  Obrien  v.  Indus.  Ins.  Dept.,— Wash.— ,  171  Pac.  1018,  2  W.  C.  L.J. 
171;  16  N.  C.  C.  A.  663. 

11.  Chicago  Cleaning  Co.,  v.  Indus.  Bd.   283   111.  177,  118  N.  E.   989,  16 
N.  C.  C.  A.  683. 

297 


§  134  WORKMEN'S  COMPENSATION  LAW 

pensation.  By  the  amendment  of  subdivision  4  of  section  3  of 
the  New  York  "Workmen's  Compensation  Law  chapter  622  of 
of  th  Laws  of  1916;  the  doubt  which  had  e-xislted  previously  to 
thie  Mulford  decision,  as  tlo  the  proper  contruction  of  the  sub- 
division, under  facts  similar  to  those  presented  by  the  case  at 
bar,  was  removed,  the  amendment  providing  'employee'  means 
a  person  engaged  in  one  of  the  occupations  enumerated  in  sec- 
tion two."12 

Removing  a  sihade  for  the  purpose  of  washing  the  window, 
is  incidental  to  cleaning  the  window,  under  the  New  York  Act.7:i 

§  134.  Determination  of  Question. — Where  the  commission 
declared  that  conducting  a  warehouse  was  an  extrahazardous 
occupation  the  court  in  review,  assuming  for  the  sake  of  argu- 
ment that  the  commission  had  'such  poweirs,  said:  "If  there  be 
or  arise  any  sfuch  plainly  hazardous  occupation  as  to  bring  it 
under  the  act,  we! apprehend  that  it  would  come  under  the  act 
regardless  of  whether  the  commission  so  determined  or  not.  In 
other  words  it  would  be  the  fact  of  the  existence  of  such  extra- 
hazardous  occupation,  and  not  determination  of  such  facts  by  the 
commission,  that  would  bring  it  under  the  act-14 

In  discussing  the  questions  of  who  is  entitled  to  the  benefit  of  the 
New  Hampshire  Act  the  court  said:  "The  test  to  determine 
whether  an  employee  is  entitled  to  the  benefit}  of  'the  act  is  to  in- 
quire whether:  (1)  He  was  engaged  in  manual  or  mechanical 
labor:  (2)  any  part  of  his  work  was  done  in  proximity  to  hoist- 
ing apparatus  or  power  driven-machinery  (Morin  v.  Nashua  Mfg. 
Co.,  78  N.  H.  567,  103  Atl.  312;  and  (3)  whether  five  or  more 
persons  in  manual  or  mechanical  labor  were  employed  in  and  about 
the  mill,  etc.,  in  which  he  worked. '  '15 

12.  Zubradt  v.  Shepherds  Estate,  180  N.  Y.  App.  Div.  20,  167  Supp.  306, 
16  N.  C.  C.  A.  644. 

13.  Tracy  v.  Mertens,  2  N.  Y.  Bui.  102,  12  S.  D.  R.  562.  ..,.,. 

14.  State  v.  J.B.  Powles  &  Co.,  94  Wash.  416,  162    Pac.  569.  16  N.  C. 
C.  A.   665. 

15.  Regnier  v.,  Rand,  —  N.  H.   — ,  (1919)  108  Atl.  810,  5   W.  C.  L,.  J. 
559;  Boody  v.   K.  &  C.  Mfg.   Co.,  77  N.  H.  209,  90    Atl.  859,  L.  R.  A.  1916 
A.  10. 

298 


HAZAKDOUS   EMPLOYMENT.  §    134 

Where  the  employer  arid  the  employee  agreed  that  both  parties 
were  working  under  the  compensation  act,  and  the  only  question 
before  the  commission  was  whether  the  accident  arose  out  of  and 
in  the  course  of  employment,  the  court  held  that  by  entering 
into  the  agreement  the  question  of  jurisdiction  was  waived  and 
the  question  whether  the  employment  was  hazardous  could  not  be 
raised  on  appeal.16 

Where  the  employer's  business  falls  within  the  enumerated 
class  of  hazardous  occupations,  and  an  employee  is  injured,  it 
will  be  presumed,  in  the  absence  of  a  showing  by  the  employer 
that  the  employee  was  not  engaged  in  a  hazardous  occupation, 
that  the  employee  was  so  engaged1" 

16.  Chicago  Packing  Co.  v.  Indus.  Bd...  282  111.  497.  118  N.  E.  727,  16 
N.  C.  C.  A.  696. 

17.  McQueeny  v.  Sutphen  &  Myer,  167  N.  Y.  App.  Div.  528.  11  N.  C.  C. 
A.  326.  Kohler  v.  Frohmann,  167  N.  Y.  App.  Div.  533,  11  N.  C.  C.  A.  326; 
Larsen  v.  Paine  Drug  Co.,  —  N.  Y.  App.  Div.  — ,  155  N.  Y.  S.  759,  11  N. 
C.  C.  A.  327. 


299 


CHAPTER  V. 
PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT. 

Section. 

135.  Definitions. 

136.  Abscess. 

137.  Actinomyeosis. 

138.  Aggravation  of  Pre-Existing  Condition. 
t39.  Aneurism. 

140.  Anthrax. 

141.  Appendicitis. 

142.  Apoplexy. 

143,.  Artery  Rupfure. 

144.  Arterio-Sclerosis. 

145.  Artificial  Limb  Broken. 

146.  Artificial  Teeth  Broken. 

147.  Artificial  Eye  Broken. 

148.  Asphyxiation. 

149.  Assaults. 

150.  Asthma. 

151.  Bends. 

152.  Blood  Poison. 

153.  Blood  Vessel  Rupture. 

154.  Boils. 

155.  Brass  Poisoning. 

156.  Brights  Disease. 

157.  Bronchitis. 

158.  Burns. 

159.  Cancer. 

160.  Carbuncle. 

161.  Cellulitis. 

162.  Cerebral  Abscess. 

163.  Cerebral  Hemorrhage. 

164.  Cerebral  Oedema. 

165.  Colds. 

166.  Concussion  Of  Brain. 

167.  Death,  Presumption  From,  While  At  Work. 

168.  Delirious. 

169.  Delirium  Tremens. 

170.  Dementia  Praecox. 

171.  Dermatitis. 

172.  Diabetes. 
300 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT. 

Sec. 

173.  Disease  Following  Injury. 

174.  Dislocation. 
176.  Dizziness. 

176.  Dog  Bite. 

177.  Drinking  Acid  Or  Poison  By  Mistake. 

178.  Drowning. 

179.  Dust. 

180.  Dysentery. 

181.  Eczema. 

182.  Embolism. 

183.  Epilepsy. 

184.  Erysipelas. 

185.  Eyesight. 

186.  Eye  Injuries. 

187.  Facial  Paralysis. 

188.  Falls  From  Vertigo  Or  Other  Like  Causes. 

189.  Felon. 

190.  Flat  Foot  From  Traumatism. 

191.  Floating  Kidney. 

192.  Frost  Bites  And  Freezing. 

193.  Friction  Injuries. 

194.  Gangrene  From  Wound. 

195.  Gastric  Ulcer. 

196.  Headaches  From  Eye  Injury  And  Other  Causes. 

197.  Heart  Disease. 

a.  Cases  in  which  Compensation  was  awarded. 

b.  Cases  in  which  Compensation  was 'denied. 

198.  Hemorrhage. 

199.  Hemorrhoids. 

200.  Hernia. 

201.  Housemaid's  Knee. 

202.  Hydrocele. 

203.  Hydronephrosis  Of  Kidney. 

204.  Hysterical  Blindness. 

205.  Hysterical  Paralysis.  » 

206.  Infection. 

207.  Influenza. 

208.  Inhalation  Of  Noxious  Gases. 

209.  Ink  Poisoning. 

210.  Insanity. 

211.  Insect  Bite. 

212.  Ivy  Poisoning. 

213.  Lead  Poisoning. 

214.  Lightning. 

215.  Lumbago. 

301 


WORKMEN'S  COMPENSATION  LAWS. 

Sec. 

216.  Malarial  Fever. 

217.  Meningitis. 

218.  Mental  Shock  Or  Fright  And  Nervous  Trouble. 

219.  Mitral  Regurgitation. 

220.  Myocarditis. 

221.  Myositis. 

222.  Nephritis. 

223.  Occupational   Disease. 

224.  Osteomyelitis. 

225.  Osteosarcoma  From  Fall. 

226.  Over  Work. 

227.  Palmer  Abscess. 

228.  Paralysis. 

229.  Periarthritis. 

230.  Peritonitis. 

231.  Pleurisy. 

232.  Pneumonia. 

233.  Proof  Of  Accident. 

234.  Proximate  Cause. 

235.  Quarantine. 

236.  Rash. 

237.  Recurrence  of  Condition  Due  To  Former  Injury. 

238.  Rheumatism. 

239.  St.  Vitus  Dance. 

240.  Sarcoma. 

241.  Scarlet  Fever. 

242.  Sciatica. 

243.  Septicaemia. 

244.  Skin  Affections. 

245.  Sleep. 

246.  Source  of  Necessary  Fact. 

247.  Sprains  And  Strains. 

248.  Suicide. 

249.  Sun  Stroke  And  Heat  Stroke. 

250.  Sympathetic*  Affection  Of  One  Eye  By  Injury  To  The  Other. 

251.  Testicles;  Injuries  To: 

252.  Tetanus. 

253.  Trachoma. 

254.  Tuberculosis. 

255.  Tumor. 

256.  Typhoid  Fever. 

257.  Ulcers. 

258.  Vaccination. 

259.  Varicose  Veins. 

260.  Vertigo. 

261.  Wood  Alcohol;  Poisoning. 
302 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT,  §    135 

§  135.  Definitions. — "The  word  'accident'  as  used  in  this 
act  shall,  unless  a  different  meaning  is  clearly  indicated  by  the 
context,  be  construed  to  mean  an  unexpected  or  unforeseen  event 
happening  suddenly  and  violently,  with  or  without  human  fault, 
and  producing  at  the  time  objective  symptoms  of  an  injury." 
Missouri  Act  Section  7,  (b). 

The  court  in  a  Wisconsin  case  said:  "The  term  'accident' 
as  used  in  the  Workmen's  Compensation  Act  is  susceptible  of  be- 
ing given  such  scope  that  one  would  hardly  venture  to  define  its 
boundaries.  Courts  have  indulged  in  very  general  statements  in 
regard  to  it  but  have  not  worked  out  any  very  definite  guide. ' ' l 

The  above  set  out  definition  from  the  Missouri  Act  as  applied 
to  an  industrial  accident  resulting  in  personal  injury  will  avoid 
much  of  the  controversy  that  has  heretofore  arisen  under  the 
acts  of  other  states  over  the  construction  and  application  of  this 
term.  This  definition  is  copied  from  the  Nebraska  Act.2 

The  payment  of  compensation  to  the  disabled  employee  is  pred- 
icated under  most  compensation  acts3  upon  an  accident  which 
arose  out  of  and  in  the  course  of  his  employment  and  directly 
resulted  in  the  disabling  injury.  In  those  states  where  the  terms  is 
not  defined  in  the  act  itself  it  is  used  in  the  popular  sense4  and  the 

1.  Bystrem  Bros.  v.  Jacobaon,  162  Wis.  180,  155  N.  W.  919. 

2.  Wk.  Comp.  Act  (Laws  1913,  c.  198)  §52b)  Johansen  v.  Union  Stock- 
yards Co.,  99  Neb.  328,  156  N.  W.  511.    See  also  1  Corpus  Juris  390. 

3.  In  the  following  states  the  word  ''injury"  alone  is  used  instead  of 
''accidental  injury"  or  "injury  by  accident:"   California,  Colorado,  Con- 
necticut, Iowa,    Massachusetts,    Montana,  New   Hampshire,   Ohio,  Texas, 
Washington,  West  Virginia,  Wyoming  and  the  Federal  Act. 

4.  Boody  v.  K  and  C,  MJg.  Co.,  77  N.  H.  208,  90  Atl.  859,  Lt  R.  A.  1916 
A.  10,  29,  227;  Vennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W. 
640  L.  R.  A.  1916  A.  273,  10  N.  C.  C.  A.  729;   Bryant  v.  Fissell.  84  N.  J. 
L.  72,  86  Atl.  458,  3  N.  C.  C,  A.  585;  Mutual  Aco.  Ass'n  v.  Barry)  131  U.S. 
100,  121,  33  L.  Ed.  60.  9  Sup.  Ct.  755,  762;  Adams  v.  Acme  White  Lead  & 
Color  Wks   182  Mich.  157,  148  N.  W.  485,  L.  R.  A,  1916A  283;  Walker  v. 
Lilleshall  Coal  Co.,  (1900),  1  Q.  B.  488;  Robbins  v.  Original  Gas  Engine 
Co.,   191  Mich.   122,  157   N.  W.  437 ;   Moore  v.  Lehigh  Valley   R.  Co.,  169 
App.  Div.  177,  154  N.  Y.  Supp  620;  Clayton  &  Co.,  v.  Hughes  (1910)  A.  a 
242,  26  T.  U  R.  359;  Fenton  v.  Thorley  &  Co.  (1903)  5  Wi  C.  C.  6;  Indian 
Creek  Coal  etc.,  Co.  v.  Calvert  (Ind.  App.)  119  N.  E.  519,  2  W.  C    L.  J. 

303 


§  135  WORKMEN'S  COMPENSATION  LAWS. 

following  definition  from  Webster  has  usually  been  adopted  by 
the  Courts:  "An.  event  that  takes  place  without  one's  foresight 
or  expectation;  an  undesigned,  sudden  and  unexpected  event; 
chance  contingency."  This  definition  has  been  repeatedly  quoted 
by  the  courts,  added  to  and  embellished!,  but  its  numerous  varia- 
tions are  immaterial.  It  is  in  its  application  that  courts  and 
commissions  have  differed  most  widely  and  frequently  gone  astray. 
The  above  definition  from  the  act,  setting  out  clearly  and  concisely 
the  necessary  elements  of  the  term,  will  very  materially  serve 
to  keep  its  application  within  the  intent  and  spirit  of  the  act. 

As  previously  stated  the  acts  of  most  states  use  the  words 
"injury  by  accident  or  accidental  injuries"  or  phraseology  to 
the  effect  that  the  injury  must  be  of  an  accidental  nature  or 
origin,  otherwise  it  is  not  covered  by  the  act.5  The  Missouri  Act, 
Section  3  reads,  "personal  injury  or  death  of  the  employee  by 
accident  arising  out  of  and  in  the  course  of  his  employment." 
Where  the  word  injury  is  used  alone  it  has  generally  been  held 
to  cover  a  broader  scope  than  where  the  element  of  accident  must 
accompany  the  injury  in  order  that  it  may  be  compensable,  As 
for  example  in  the  case  of  lead  poisoning  which  in  Massachusetts 
is  held  to  be  an  injury  arising  out  of  and  in  the  course  of  the 
employment  but  it  is  not  accidental.6  In  other  words  "injury" 

230;  Haskell  etc.,  Car.  Co.  v.  Brown,  64  Ind.  App,.  — ,  117  N.  E.  555,  1  W. 
C.  L.  J.  48;  Hollenbach  v,  Hollenbach,  181  Ky.  262,  204  S\,  W,.  152,  2  W. 
C.  L.  J.  493;  Lane  v.  Horn,  etc.,  Baking  Co.,  (Pa.)  104  Atl.  615,  2  W,  C, 
L.  J.  922;  Southwestern  Insurance  Co.  v,  Pillsbury,  172  Gal.  768,  158  Pac. 
762. 

5,  Walther  v.  American  Paper  Co.,  89  N.  J.  L.  J.  732,     98  Atl.     264; 
Seel  Sales  Corp,  v.  Indus.  Comm,,  —  111.  — ,  (1920),  127  N.  E.  698,  6  W.  C. 
L.  J.  303. 

6.  Johnson  v.  London  Guarantee  &  Accident  Co.,  Ltd,  217  Mass.  388, 
104     N.  E.  735;     In   re   Madden,    111   N.   E,   379,    222    Mass.    487;In   re 
Mooradjian.  118  N.  E.  951,  1  W.  C.  L.  J.  812;  In  re  Hurle,  217  Mass.  223, 
104  N.  E.  336,  4  N,  C.  C.  A.  527,  L.  HI  A.  (1916)  A.  279;  In  re    E.  L.  Hill 
Op.  Sol.  Dep.  C.  &  L.,  p.  204;  In  re.  J.  B.  Irving  Op.  Sol.  Dep,,  C.  &  L., 
211;  In  re    William  Murray  Op.  Sol.  Depl.,  C.  &  L.,  p.  201;  In  re   Willard 
E.  Jule,  Op.  Sol.  Dep.  C.  &  L.,  261;   Contra,  see  Adams  v.  Acme  White 

304 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    135 

where  used  alone  includes  all  accidents  but  the  word  "accident'* 
does  not  include  all  injuries.  The  two  terms  are  not  synonymous.7 

In  the  Massachusetts  case  above  the  court  said :  ' '  Under  the 
act  'personal  injury'  is  not  limited  to  injuries  caused  by  external 
violence,  physical  force,  or  as  a  result  of  accident  in  the  sense  in 
which  that  word  is  commonly  used  and  understood,  but  under 
the  statute  is  to  be  given  a  much  broader  and  more  liberal  mean- 
ing, and  includes  any  bodily  injury." 

This  question  does  not  arise  in  Missouri  and  many  other  sHtes 
because  of  the  following  language  of  Section  (7)b.  of  the  Missouri 
Act;  provisions  substantially  similar  to  which  are  found  expressed 
or  implied  in  many  other  acts:  "The  terms  'injury'  and  'personal 
injuries'  shall  mean  only  violence  to  the  physical  structure  of 
the  body  and  such  disease  or  infection  as  naturally  results  there- 
from. The  said  terms  shall  in  no  case  be  construed  to  include 
occupational  disease  in  any  form,  or  any  contagious  or  infectious 
disease  contracted  during  the  course  of  employment,  or  death  due 
to  natural  causes  but  occuring  while  the  workman  is  at  work." 

The  discussion  of  "accident,"  "injury  by  accident,"  "acciden- 
tal injury"  and  "injury"  or  "personal  injury,"  will  of  necessity 
overlap  somewhat  the  discussion  of  the  phrase  "arising  out  of 
and  in  the  course  of  the  employment, "  which,  in  most  Workmen's 
Compensation  Acts,  immediately  follows  the  other  term.8  But 
since  the  words  "injury"  and  "accident"  as  us^d  in  Workmen's 
Compensation  laws  and  decisions  have  a  meaning  independent  of 
the  above  phrase,  it  is  thought  best  to  treat  them  separately. 

In  determining  whether  disability  is  due  to  a  personal  injury 
by  accident  within  the  meaning  of  the  Missouri  Act  and  other  acts 
containing  substantially  the  same  provisions,  the  following  ele- 
ments must  be  considered.  It  is  immaterial  that  it  was  due  to 

Lead  &  Color  Works,  182  Mich.  157,  148  N.  W.  485,.  6  N.  C.  C.  A.  482; 
Miller  v.  American  Steel  etc.  Co.,  90  Conn  349,  97  Atl.  345,  See.  also, 
Matthiessen,  etc.,  Zinc  Co.  v.  Industrial  Board,  284  111.  378,  120  N.  E.  249, 
2  W.  C.  L.  J.  876;  Coates  v  City  of  Elisnore,  3  Gal.  L.  A.  Com.  269. 

7,  Cooke  v.  Holland  Furnace  Co.,  200  Mich.  192,  166  N.  W.  1013,  1  W. 
C.  L.  J.  994,  17  N.  C.  C.  A.  153. 

8.  It  does  not  follow  the  word  accident  in  the  acts  of  Michigan,  Texas, 
Wyoming,  West  Virginia  and  Wisconsin, 

305 

w.  a— 20 


§  135  WORKMEN'S  COMPENSATION  LAWS. 

negligence,9  as  is  stated  in  Section  3,  and  also  in  the  definition 
of  the  word  "accident"  in  Section  7b  which  reads,  "with  or  with- 
out human  fault,"  except  of  course,  such  fault  or  negligence  as 
may  be  classified  as  "willful  misconduct."  The  accident  result- 
ing in  the  disability  must  have  been  an  "unexpected  or  unforeseen 
event"  which  happened  "suddenly10  and  violently"  and  produced 
at  the  time  "objective  symptoms  of  an  injury."  The  word  "ob- 
jective" is  defined  by  "Webster  as,  "Outward;  external;  extrinsic; 
opposite  to  subjective,"  and  the  word  "symptom"  as,  "A  per- 
ceptible change  in  the  body  or  its  functions  indicating  the  kind 
or  phases  of  disease."  The  disability  must  also  be  due  to  "violence 
to  the  physical  structure  of  the  body"  in  order  that  it  may  be 
an  injury  within  the  meaning  of  the  act.  Again  quoting  from 
Webster,  "violent"  is  defined  by  him  as  "acting  or  produced  by 
improper  force;  effected  by  force;  unnatural."  In  summarizing 
the  necessary  elements  of  a  "personal  injury  by  accident"  we  are 
confronted  by  the  following  questions: 

1.  Did  the  event  resulting  in  disability  happen  suddenly? 

2.  "Was  the  event  unexpected  or  unforeseen? 

3.  Did  it  happen  violently,  that  is,  was  it  effected  by  force, 
improper  or  unnatural? 

4.  "Was  that  improper  or  unnatural  force  applied  to  the  physi- 
cal structure  of  the  body? 

5.  Did  it  at  the  time  produce  outward  or  external  and  per- 
ceptible change  in  the  body  or  its  functions? 

If  all  these  questions  can  be  answered  in  the  affirmative  there 
has  occurred  a  "personal  injury  by  accident"  within  the  spirit 
and  intent  of  those  compensation  acts  that  explicitly  compensate 
only  for  personal  injury  by  accident  arising  out  of  and  in  the 
course  of  the  employment.  While  courts  and  commissions  have 
awarded  compensation  in  many  cases  wherein  one  or  more  of  the 

9.  Vennen.  Admnr's.,  etc.  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154 
N.  W.  640;  L.  R.  A.  1916A  273;  10  N.  C.  O.  A,  729;  Decatur,  R.(  etc.',  Co. 
v.  Industrial     Board,  276  111.  472,  114     N.  E.  915;  Grannison's  'Adm'r.  v. 
Bates  &  Rogers  Const.  Co.,  —  Ky,  App.  — ,  (1920),  219  S.  W.  806,  5  W. 
C.  L.  J.  843. 

10.  Liondale  Bleach.  Dye  &  Paint  Works  v.  Riker,  85  N.  J.  L.  426,  89 
Atl,  929.  4  N.  C.  C.  A.  713!. 

806 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    135 

* 

above  questions  would  have  had  to  have  been  answered  in  the 
negative,  these  questions  appear  to  be,  the  crystalization  of  the 
decisions,  as  to  the  necessary  elements  of  a  personal  injury  by 
accident  within  the  meaning,  and  intent  of  the  compensation  acts 
generally.  The  epitome  of  the  decisions  the  author  of  the  Ne- 
braska Act  thus  concisely  embodied  in  the  above  mentioned  defini- 
tion. 

The  following  quotations  from  opinions  in  various  cases  may 
throw  some  further  light  upon  the  definition  of  the  term  ' '  personal 
injury  by  accident  and  its  application." 

"The  words  used  are  'violence  to  the  physical  structure  of 
the  body'  not  injury  to  the  physical  structure  of  the  body  by 
external  violence.  The  violence  in  question  may  originate  from 
lifting  heavy  weights,  or  from  other  provable  causes,  for  instance 
intense  heat  operating  directly  on  the  part  of  the  body  internally 
affected  (see  Lane  v.  Horn  &  Hardart  Co.,  104  Atl.  615)  which 
effect  a  sudden  change  in  the  physical  structure  or  tissues  of 
the  body,  and  still  be  within  the  compensation  act."11 

"It  is  insisted  that  no  'unexpected  or  unforeseen  event,  happen- 
ing suddenly  and  violently'  occurred;  that  sickness  arising  from 
the  placing  of  his  body  by  plaintiff  against  the  beams  and  surging 
back  and  forwards  could  not  be  said  to  be  'an  unforeseen  event;' 
and  that  it  did  not  happen  suddenly  and  violently  except  as  it 
was  produced  by  plaintiff  himself.  It  is  said  that  the  language 
'was  clearly  meant  to  limit  recoveries  to  accident  such  as  the 
breaking  of  machinery,  or  the  unexpected  cutting  or  wounding 
of  employee's  person  by  some  breaking  or  falling  or  exploding  of 
apparatus,  machinery  or  tools.'  To  hold  this  would  unduly  limit 
the  meaning  of  this  clause  (Neb.  Rev.  St.  1913,  Sec.  3693).  The 
unforeseen  event  was  the  straining,  weakening  or  lesion  of  the 
blood  vessels  of  the  brain  or  stomach,  and  this  was  an  unforeseen 
event  happening  suddenly.  It  is  also  said  that  no  'objective  symp- 
toms' of  an  injury  appeared  at  the  time,  and  that  these  elements 
are  essential.  We  agree  with  this  argument  so  far  that  the  acci- 
dent must  produce  'at  the  time  objective  symptoms  of  an  injury,' 
but  the  difficulty  is  as  to  what  constitutes  objective  symptoms. 

11.  McCauley  v.  Imperial  Wollen  Co.  et  al.,  —  Pa.  —  104  Atl.  617,  17 
N.  O.  C.  A.  864. 

307 


§  135  WORKMEN'S  COMPENSATION  LAWS. 

* 

Defendant's  idea  is  that  by  objective  symptoms  are  meant  symp- 
toms of  any  injury  which  can  be  seen,  or  Ascertained  by  touch. 
We  are  of  the  opinion  that  the  expression  has  a  wider  meaning, 
and  that  symptoms  of  pain  and  anguish,  such  as  weakness,  pallor, 
faintness,  sickness,  nausea,  expressions  of  pain  clearly  voluntary, 
or  any  other  symptoms  indicating  a  deleterious  change  in  the 
bodily  condition  may  constitute  objective  symptoms  as  required 
by  the  statute. ' ' 12  The  court  in  a  Wisconsin  case  said :  ' '  The 
term  '  accidental, '  as  used  in  compensation  laws,  denotes  something 
unusual,  unexpected,  and  undesigned.  The  nature  of  it  implies 
that  it  was  an  external  act  or  occurrence  which  caused  the  personal 
injury. ' ' 1S  Though  muscular  spasm  caused  by  straining  the 
muscles  of  the  right  side  while  attempting  to  lift  a  heavy  cement 
block  while  in  a  sitting  position  was  held  to  be  an  accident  within 
the  meaning  of  the  Wisconsin  Workmen's  Compensation  Act.14 

Quoting  further  from  opinions  in  other  cases:  "The  statute 
seems  to  contemplate  that  an  accidental  injury  may  result  from 
mere  mischance,  that  accidental  injuries  may  be  due  to  careless- 
ness, not  willful,  to  fatigue,  and  to  miscalculation  of  the  effects 
of  voluntary  action. "  15  "A  workman  cannot  recover  compen- 
sation under  the  Act,  unless  he  can  satisfy  the  court  that  there 
is  a  particular  time,  place  and  circumstance  in  which  the  injury 
by  accident  happened."16  "It  seems  to  me  that  these  interpre- 
tations of  the  word  point  to  some  particular  event  or  occurence 
which  may  happen  at  an  ascertainable  time,  and  which  is  to  be 
distinguished  from  the  necessary  and  ordinary  effect  upon  a  man's 
constitution  of  the  work  in  which  he  is  engaged  day  by  day.  So 
denned  the  word  'accident'  seems  to  me  to  exclude  the  anticipated 
and  natural  consequence  of  continuous  labor."17  "An  'accident' 

12.  Manning  v.  Pomerene,  101  Neb.  127,  162  N.  W.  492,  14  N.  C.  C.  A. 
536. 

13.  Vennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L. 
R.  A.  1916  A..  273. 

114.     Bystrom  Bros.  v.  Jacobson,  162  Wis.  180,  155  N  W.  919,  10  N.  C. 
C.  A.  729. 

15.  Robbins  v.  Original  Gas  Engine  Co.,  191  Mich.  122,  157  N.  W.  437, 

16.  Martin  v.  Manchester  Corp.,  5  B.  W.  C.  C.  259  C.  A. 

17.  Coe  v,  Fife  Coal  Co.,  Ltd.,  2  B.  W.  C  C.  259 
308 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    135 

is  simply  an  undesigned  sudden  and  unexpected  event,  usually 
of  an  afflictive  or  unfortunate  character,  and  often  accompanied 
by  a  manifestation  of  force.  The  word  'undesigned'  must  not  be 
taken  too  literally  in  this  connection  because  a  person  may  suffer 
injury  accidental  to  him,  under  circumstances  which  may  include 
the  design  of  another."18 

The  event,  to  constitute  an  accident,  must  be  one  that  is  un- 
foreseen; that  is,  unforeseen  by  the  person  injured  by  its  occur- 
rence. The  standard  taken  is  not  necessarily  the  intelligence  or 
foresight  of  the  average  person.  Indeed,  it  has  been  declared 
that  an  occurrence  is  unexpected  if  it  is  not  expected  by  the  person 
who  suffers  by  it,  even  though  every  man  of  common  sense  who 
knew  the  circumstances  would  think  it  certain  to  happen.19 

The  fact  that  the  result  of  an  extraordinary  exertion  by  a  man 
of  impaired  physique  would  have  been  expected  or  contemplated 
as  a  certainty  by  a  physician,  if  he  had  previously  examined  the 
man,  means  nothing  in  this  regard.  Although  the  result  may  have 
been  due  to  the  willful  act  of  another,  if  it  was  unintended  or  un- 
foreseen by  the  person  suffering  injury  therefrom,  the  occurrence 
is  nevertheless  an  accident.20 

The  words  "undesigned"  or  "unforeseen"  refer  to  the  result 
produced,  and  not  to  its  cause.  When  a  man  lifts  a  heavy  weight, 
he  intends  to  do  exactly  what  he  does  do;  nevertheless  if  he 
strains  a  muscle,  or  ruptures  a  blood  vessel,  the  injury  is  due  to 
an  accident.21 

"An  injury,  to  be  accidental  or  the  result  of  an  accident,  must 
be  traceable  to  a  definite  time,  place  «.nd  cause. ' ' 22 

18.  Dillilend  et  al ,  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  104  Kan. 
771,  180  Pac,  793,  4  W.  C.  L.  J.  187. 

19.  Clover,  etc.,  Co.  v.  Hughes,  102  L.  T.  Rep.  340,  343,  96  T.  L.  Rep. 
359,  1910  A.  C.  242,  3  B.  W.  C.  C.  275. 

20.  Challls  v.  London,  etc.,  R.  Co..  93  U  T.  Rep.  330,  1905  2  K.  B.  154, 
21  T.  L.  Rep.  486,  7  W.  C.  Cas.  23,  74  L.  J.  K.  B.  569,  53  Wlcly.  Rep.  613. 

21.  Stewart  v.  Wilsons,   etc.,  Coal   Co.,  5  Sc,   Sess.  Cas.    (5th  series) 
120. 

22.  Matthiossen  &  Hegeler  Zinc  Co.  r.  Industrial  Board  et  al.,  284  111. 
37S,  120  Nl  E.   249,  2  W.  C.   L.  J.  875;    Steel  Sales   Corporation  v.  Indus. 
Comm.,  —  111.  — ,  127  N.  E.  698,  6  W.  C.  L.  J.  303.     It  must  be  sudden. 

309 


§  135  WORKMEN'S  COMPENSATION  LAWS. 

"It  (the  act)  does  not  afford  compensation  for  injuries  or 
misfortunes,  which  merely  are  contemporaneous  or  coincident 
with  the  employment,  or  collateral  to  it.  Not  every  diseased 
person  suffering  a  misfortune  while  at  work  for  a  subscriber  is 
entitled  to  compensation.  *  *  *  The  personal  injury  must 
be  the  result  of  the  employment  and  flow  from  it  as  the  induc- 
ing proximate  cause.  *  *  *  The  direct  connection  between 
the  personal  injury  as  a  result  and  the  employment  as  ito  piroxi- 
mate  cause  must  be  proved  by  facts  before  the  right  to  compen- 
sation springs  into  being."23 

"That  an  injury  received  by  a  workman  while  engaged  in  his 
usual  work,  without  intervention  of  something  unusual  or  for- 
tuitous is  not  an  accident,  is  now  so  well  established  by  our.  de- 
cisions that  the  proposition  needs  no  discussion."24 

"Personal  injury  as  tihiat  term  is  used  in  the  workman Vs  com- 
pensation act,  has  jreference  not  to  some  break  in  some  part  of 
the  body  or  some  wound  thereon,  or  the  like,  but  rather  to  the 
consequences  or  disability  that  results  therefrom."25 

"  'Personal  injury'  within  the  meaning:  of  the  statute  is  a 
bodily  injury  due  to  accident.  We  define  an  accidental  bodily 
injury  as  a  localized  abnormal  condition  of  the  living  body, 
directly  and  contemporaneously  caused  by  accident1  an  ac- 
cident as  an  unlocked  for  mishap,  or  an  untoward  event  or  con- 
dition not  expected.  The  concurrence  of  accident  and  injury 
are  conditions  precedent  to  the  right  to  compensation."26 

"The  fact  that  appellee  was  suffering  from  a  mental  or  rierv- 
ous  condition  resulting  from  a  physical  injury,  rather  than  from 
the  physical  injury  itself,  cannot  have  the  effect  of  relieving  ap- 
piellant  from  liability.  This  court  is  committed  to  the  doctrine 

McArdle  v.  Swansea  Harbour  Trust,  8  B.  W.  U.  C.  48y,  11  N.  u.  U.  A. 
175;  Liondale  Breach,  Dye  &  Paint  Works  v.  Rikes,  85  N.  J.  L.  426,  89 
Atl.  929,  4  N.  C.  C.  A.  713. 

23.  Madden's  case,  222  Mass.  487,  111  N.  E.  379,  U.  R.  A.  1916,  D.  1000. 

24.  Guthrie  v.  Detroit  Shipping  Co.,  200  Mich.  355,  167  N.  W.  37. 

25.  Indian  Creek  CoaJ  &  Mining  Co.  v.  Calvert,  (Ind.  App.),  119  N.  E. 
519;   2  W.  C.  L.  J.  230;    Kingan  Co.  v.  Ossom,  (Ind.  App.),  121  N.  E.  289, 
17  N.  C.  C.  A.  784. 

26.  Ahern  v.  i&pier  et.  al.,  93  Conn;  151i|  105  Atl.  340,  3  W.  C.  L.  J.  221. 
310 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    136 

that  a  'personal  injury,'  as  that  term  is  used  in  the  Workmen's 
Compensation  Act,  has  reference  not  merely  to  some  break  in 
some  part  of  the  body,  or  som<e  wound  thereon  or  the  like,  but 
also  to  the  consequence  or  disability  that  results  therefrom- ": 

The  Colorado  Act  uses  the  terms  "personal  injury  or  death 
accidtentally  sustained"  and  "injury  proximately  caused  by  ac- 
cident" in  providing  for  what  injuries  or  deaths  compensa- 
tion shall  be  allowed.  By  the  term  "injury"  is  meant,  not  only 
an  injury  the  means  or  cause  of  which  is  an  accident,  but  also 
an  injury  which  in  itself  ia  an  accident.  The  word  "by"  may 
mean  through  the  means,  act  or  instrumentality  of.  Therefore 
"injury  by  accident"  and  "injury  caused  by  accident"  are 
terms  or  expressions  which  can  be  used  interchangeably,  and 
death  from  heart  disease  accelerated  by  the  inhalation  of  alfalfa 
dust  while  pitching  hay  was  held  to  be  compensable. 28 

§  136.  Abscess. — When  a  workman  is  injured  while  in  the 
course  of  his  employment,  and  as  a  direct  result  of  this  injury 
infection  develops  and  causes  dfeath,  the  original  injury  will  be 
considered  as  the  proximate  cause  of  the  death.*9 

Where  there  is  no  evidence  that  the  abscess  resulted  from  an 
accident  the  resultant  disability  is  not  compensable.80 

Disability  from  ankylosis,  resulting  from  abscesses,  following 
a  fracture,  was  held  compensable.81 

Where  a  miner,  from  the  use  of  a  pick  and  kneeling  while  at 
work,  suffered  the  gradual  formation  of  abscess  on  his  hands 
and  knees,  it  was  held  that  he  had  not  been  injured  by  accident.33 

27.  Kingan  &  Co.  Ltd.  v.  Ossom,  (Ind.  App.),  121  N.  B.  289,  3  W.  C.  L. 
J,  276. 

28.  Carroll  v.  Industrial  Comm.,  —  Colo.—,  (1921),  195  Pac.  1097. 

29.  In  re  Garbally,  Vol.  4,  Ohio  I.  C.  No.  5,  p  132;    In  re  Smith,  Vol.4, 
Ohio  I.  C.  No.  5,  p.  109;    Nash  v.  The  General  Petroleum  Co.,  1|  Cal.  I.  A. 
C.  103;  Cripps  v.  Aeta  Life  Ins.  Co.,  216  Mass.  586,  104  N.  E.  565;  In  re 
Joseph  L.  Porter.  3rd  A.  R.  U.  S.  C.  C.  103;  In  re  Patrick  J.  Mara,  3rd 
A.  R.  U.  S.  C.  C.  104. 

30.  Howe  v.  Pernlll  Colliers,  Ltd.,  5  B.  Wi  C.  C.  629,  C.  A, 

31.  Newcomb  v.  Albertson,  85  N.  J.  L.  435.  89  Atl.  928,  4  N.  C.  C.  A. 
783;  In  re  James  F.  Williams.  2nd  A.  R.  U.  Sk  C.  C.  119. 

92.  Marshall  v.  East  Hollywell  Coal  Co,  7  W.  C.  C.  19.  21  Times 
L.  R.  494;  In  re  Freeman  H.  Murray,  3rd  A.  R.  U.  S.  C.  C.  104. 

311 


§  138  WORKMEN'S  COMPENSATION  LAWS. 

Compensation  was  allowed  under  tlue  Federal  Act  for  dis- 
ability resulting  from  abscesses  of  the  hand  caused  by  handling 
cold  letter  box  locks.33 

Compensation  was  denied  for  ischiorectal  abscess  alleged  to 
have  been  caused  by  the  jarring  received  in  bicycle  riding,  be- 
cause of  the  insufficiency  of  the  evidence.34 

§  137.  Actinomycosis. — An  infection  of  the  nose  and  mouth, 
contracted  as  a  remit  of  handling  grain,  was  upon  conflicting 
medical  testimony  held  to  be  an  injury  arising  out  of  the  em- 
ployment.35 

§  138.  Aggravation  of  Pre-existing  Condition. — "Likewise 
the  courts),  consistent  with  the  theory  of  workmen's  compensa- 
tion acts,  hold  with  practical  uniformity  thai;,  where  an  employee 
afflicted  with  disease  receives  a  personal  injury  under  such 
circumstances  as  that  he  might  have  appealed  to  the  act  for  re- 
lief on  account  of  the  injury  had  there  been  no  disease  involved, 
but  the  disease  as  it  in  fact  exists  is  by  the  injury  materially  ag- 
gravated or  accelerated,  resulting  in  disability  or  death  earlier 
than  would  have  otherwise  occurred  and  the  disability  or  death 
does  not  result  from  the  disease  alone  progressing  naturally, 
as  it  would  have  done  under  ordinary  conditions,  but  the  injury 
aggravating  and  accelerating  its  progress,  materially  contributes 
to  hasten  its  culmination  in  disability  or  death,  there  may  be  an 
award  under  the  compensation  acts."36 

Ani  employee's  abdomen  was  injured  by  a  fall  in>  the  course  of 
his  employment.  The  court  said:  "Doubtless  there  was  a  dis- 
eased condition  before;  the  injury;  it  maybe  that  the  injui'y 
would  not  have  caused  hjis  death  but  for  these  antecedent  con- 

33.  In  re  Henry  P.  Disley,  2nd  A.  R.  U.  S.  C..  C.  118. 

34.  In  re  Frank  Banyea,  2nd  A,  R.  U.  S.  C.  C.  118. 

35.  Hartford  Ace.  &  Indem.  Co.  v.  Indus.  Comm.,  —  Cal.  App.  — ,  163 
Pac,  225  Al  W.  C.  L.  J.  223. 

36.  In  re  Bowers,  Williams,  Colan,  64  Ind.  App.  116  N.  E.  842,  15  N.  C. 
C.  A.  633;  St.  Clair  v.  A.  H.  Meyer  Music  House,  —  Mich.  —    (1920),  178 
N.  W.  705j  6  W.  C.  L.  J.  540;  Hanson  v.  Dickinson,  — •<  la.  — ,  (1920),  176 
N.  W.  823,  5  W.  C.  L.  J.  837;  In  re  Percy  B.  Spencer  2nd.  A.  R.  U.  S.  C. 
C,  198;  Patrick  v.  J.  B.  Ham  Co.  —  Me.  — ,  (1921),  111  Atl.  91& 

312 


PERSONAL  INJURY   OR  DEATH   BY  ACCIDENT,  §    138 

clear  from  the  evidence,  would  warrant  vacating  the  present 
award."87 

"At  the  time  of  his  accident,  Harry  Banks  was  suffering  from 
typhoid  fever  in  the  incubation  stage,  which  became  aggravated 
by  the  severe  injury  to  his  head  through  the  consequent  lower- 
ing of  his  resisting  power  and  the  said  disease  thus  aggravated 
caused  his  death."  The  court  of  appeals  affirmed  a  judgment 
of  the  appellate  division  affirming  the  award.38 

Where  the  employee,  while  ah  work,  slipped  and  bumped  his 
neck,  went,  home  for  three  weeks,  then  worked,  then  quit,  and 
nine  months  thereafter  died  of  pulmonary  tuberculosis,  in  affirm- 
ing an  award  the  court  said:  "The  evidence  shows  quite  clearly, 
and  the  commission  has  found,  that  the  disease  existed  before  the 
injury,  which  accelerated  the  disease  and  shortened  life.  The  in- 
jury caused  a  hemorrhage,  which,  so  far  as  the  evidence  discloses, 
the  deceased  never  experienced  before  or  after,  and  there  is  medi- 
cal testimony  to  the  effect  that  such  an  injury  would  develop  the 
disease  then  existing.  If  an  employee  has  a  disease,  and  having 
the  «ame,  receives  an  injury  'arising  out  of  and  in  the  course  of  em- 
ployment,' which  accelerates  the  disease  and  causes  his  death,  such 
death  results  from  injury,  and  the  right  to  compensation  is  se- 
cured even  though  the  disease  itself  may  not  have  resulted  from 
the  injury."38 

37.  Mazarisi  v.  Ward  &  Tully,  170  N.  Y.  App.  Div.  868,  156  N.  Y.  Supp. 
964,  15  N.  C.  C.  A.  634;  Stombaugh  v.  Peerless  Wire  Peace  Co.,  198  Mich. 
445,  1164  N.  W.  537,  15  N.  C.  C.  A.  635. 

38.  Banks  v.  Adams  Express  Co.,  221  N.  Y.  606,  117  N.  E.  1060,  15  N. 
C.  C.  A.  639;  Utilities  Coal  Co.  v.  Herr,  —  Ind.  App.  — ,  132  N.  B.  262. 

39.  Van  Keurene  v.  Dwight  Divine  &  Sons,  179  N.  Y.  App.  Div.  509, 
165  N.    Y.  Supp.    1049;   In  re    Bowers,  64  Ind.    App.  — ,   116  N.    E.  842; 
Peoria  R.,  etc..  Co.  v.  Indus.  Bd.,  279  111.  352,  116,  N.  E.  651;     Indianapolis 
Abattoir  Co.  v.  Coleman,  64  Ind.  App.   — ,  117  N.  E.  502,    1  W.  C.  L.  J. 
41;   Indian    C.  C.  &  Mining    Co.  v.  Calvert.   (Ind.  App.),  119    N.  E.  519, 
2  W.  C.  L.  J.  230;  Behan  v.  Honor  Co.,  143  (La.),  78  So.  589,  2  W.  O. 
L.  J.  67;     Republic  Iron   &   Steel  Co.,   v.  Markiowicz.  --  Ind.  App.  — , 
(1921).    129  N.E.  710;   Glennon's    Case,— Mass.  — ,   (1920),   128    N.    E. 
942,  7  W.  C.  L.  J.   210. 

313 


§  138  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  employee  was  at  the  time  of  his  injury  suffering 
from  a  tumor,  which  condition  was  aggravated  by  the  injury  he 
was  nevertheless  entitled  to  compensation.40 

Where  an  employee,  engaged  in  baling  scrap  copper,  was 
found  dead  near  the  baling  press,  with  a  completed  bale  of  cop- 
per besides  him,  and  an  autopsy  disclosed  an  acute  hyperemia  of 
the  organs  of  the  body  and  the  heart  somewhat  enlarged,  and  it 
was  contended  that  the  employee's  heavy  work  accelerated 
death  on  account  of  this,  condition,  the  court  staid:  "In  this  case 
there  was  no  evidence  tending  to  prove  any  accident  or  accidental 
injury  to  the  deceased.  There  was  no  mark  on  his  person  and 
nothing  from  which  it  could  be  inferred  that  an  accident  had  oc- 
curred, and  it  is  not  claimed  that  there  was  auk  accident  but  only 
that  the  heavy  work  which  he  was  doing  in  the  ordinary  course 
of  his  employment  caused  or  hastened  the  death."  Compensation 
was  denied.41 

It  is  sufficient  to  justify  an  award,  if  the  accident,  by  weaken- 
ing resistance,  or  otherwise,  influences  existing  disease  to  cause 
death  or  disability.42 

Where  excessive  strain  from  overwork  caused  a,  break  of  an 
aneurism  from  which  an  employee  was  suffering,  it  was  held  to 
be  a  compensable  accident.43 

Wherte  it  was  claimed  that  latent  tuberculosis  germs  which 
were  in  the  system  were  caused  to  become  active  by  an  injury  to 
the  employee's  hand,  the  court  held  the  proof  insufficient.44 

"Suppose  the  deceased  did  have  an  aneurism  of  the  aorta, 
and  while  assisting  in  the  lifting  of  the  iron  plate  on  Nov.  18th 
he  fell  and  was  found  dead ;  it  can  reasonably  be  found,  I  think, 

40.  Big  Muddy  Coal,  etc.,  Co.  v.  Indus  Bd.,  279  111.  235,  116  N.  E.  662; 
Hartz  v.  Hartford  Faience  Co.,  90  Conn.  539,  97  Atl.  1020;   In  re  Chas 
Carter,  2nd  A.  R.  U.  S.  C.  C.  197.     See  Conn.  Act,  Am.  1921,  §  5341. 

41.  Jakub  -v.  Indus  Comm.,  12'3  N.  E.  263,  4  W.  C.  L.  J.  153,  288  111.  87. 

42.  Mailman  v.  Record   F.   &    M.    Co.,    118    Me.   172,   106    Atl.   606,   4 
W.  C.  L.  J.  205.  Voorhees  v.  Smith,  86  N.  J.  L.  500,  92  Atl.  280,  7  N.  C. 
C.  A.  646;  Trodden  v.  Mcl>ennard,  4  B.  W!.  C.  C.  190;  Doughten  v.  Hick- 
man,  6  B.  W..C.  0.  77;  Puritan  v.  Wolfe,  (Ind.  App.),  120  N.  E.  417. 

43.  Grove  v.  Michigan  Paper  Co.,  184  Mich.  449,  151  N1.  W.  554. 

44.  White  v.  Lanter,  37  N.  J.  Law  J.  175. 
314 


PERSONAL  INJURY  OR   DKATII   BY  ACCIDENT.  §    138 

that  the  exertion  of  lifting  the  iron  plate  or  assisting  therein, 
was  too  much  for  his  diseased,  enfeebled  or  weakened  condition, 
that  it  resulted  in  anj  accident  to  him,  and  that  therefore,  he 
should  be  entitled  to  compensation."46 

Where  a  a  employee  was  suffering  from  a  sarcoma  condition 
of  the  bone  whicli-aondition  was  so  aggravated  by  being  struck  by 
a  piece  of  coal  falling  thereon,  that  it  wad  necessary  to  ampuftate 
the  leg,  it  was  held  to  be  a  compensable  accident.46 

Where  a  school  principal  who  was  suffering  from  arterio 
sclerosis  was  struck  on  the  head  by  a  basket  ball  and  died  there- 
from and  it  was  shown  that  he  would  have  lived  several  years 
but  for  the  accident,  it  was  nevertheless*  heldi  that  his.  defendants 
were  entitled  to  compensation.47  Assuming  that  such  disability  is 
being  prolonged  by  the  disease,  there  is  yet  no  point  at  which  the 
consequences  of  the  injury  cease  to  operate.  It  is  the  theory  of 
the  respondents,  not  that  the  consequences  of  the  injury  cease,  but 
that  they  are  prolonged  and  extended.  There  is  no  part  of  the 
period  of  disability  that  would  have  happened  or  would  have  con- 
tinued except  for  the  injury.  The  consequences  of  the  injury  ex- 
tend through  the  entire  period,  and  so  long  as  the  incapacity  of 
the  employee  for  work  results  from  the  injury,  it  comes  within 
the  statute,  even  when  prolonged  by  pre-existing  disease."48 

Where  an  employee  sustained  an  injury  to  his  head  and,  due 
to  a  pre-existing  constitutional  disease  known  as  syphilis,  de- 
veloped a  condition  of  forisis  rendering  him  insane,  it  was  held 
he  was  entitled  to  compensation.411 

"The  disease,  which  the  Commission  finds  existed  prior  to  the 
accident,  did  not  'naturally  and  unavoidably  result'  from  the  acci- 

45.  Winter  v.  Atkinson,  37  N.  J.  L.  J.  195,  11  N.  C.  C.  A.  180,  Aff'd.  ia 
88  N.  J.  U  401,  96  Atl.  360. 

46.  Prokopick  v.  Buffalo  Gas  Co.,  7  N.  Y.  St.   Dep.  Rep.  390. 

47!  City  of  Milwaukee  v.  Industrial  Comm.,  160  Wis.  238,  151  N.  W. 
247. 

48.  Hills  v.  Oval  Wood  Dish  Co.,  191  Mich.  411,  158  N.  W.  214,  15  N. 
C.  C.  A.  649;    Blackburn  v.  Coffeyville  Vitrified  Brick  &  Tile  Co.,  1920, 
193  Pac.  351,  7  W.  C.  L.  J.  58. 

49.  In  re  Crow  ley,    223  Mass.  288,  111  N.  E.  786,  15    N.  C,  C.  A.  346; 
Finkelday  v.  Henry  Heide,  183  N.  Y.  S.  912.  6  W.  C.  L,  J.  565:     In  re  G. 
B.  P.,  3rd  A!  R.  U.  S.  C.  C.  155. 

315 


§  138  WORKMEN'S  COMPENSATION  LAWS. 

dent;  it  was  there  with  all  the  potentiality  of  destruction  to  the 
eyesight  when  this  accident  occurred,  and  if  we  assume  that  the 
disease  was  aggravated  by  the  accident,  that  it  developed  more 
rapidly  than  would  otherwise  have  been  the  case,  still  the  disease 
or  infection  was  not  the  result  of  the  accident,  and  it  is  only  re- 
sulting disease  or  infection  which  is  provided  for  by  the  law.  The 
evidence  before  the  Commission  is  undisputed  that  this  disease 
had  resulted  in  'an  atrophy  or  degeneration  of  the  optic  nerve,' 
and  that  'such  a  condition  is  in  consequence  of  a  specific  constitu- 
tional infection  and  is  permanent  with  a  tendency  toward  pro- 
gression;' that  the  claimant  had  developed  the  symptoms  of  loco- 
motor  ataxia,  and  that  the  atrophy  of  the  optic  nerve  predated 
the  injury,  and  the  only  inference  from  the  testimony  is  that  the 
claimant  was  so  far  advanced  in  the  disease  that  it  was  only  a 
matter  of  a  comparatively  short  time  when  he  must  have  reached 
the  results  which  now  prevail,  though  no  accident  had  happened. 
There  is  some  slight  testimony  to  the  effect  that  the  disease  might 
have  been  aggravated  or  accelerated  by  reason  of  the  degeneration 
of  the  tissues,  lessening  the  claimant's  power  of  resistance;  but 
this  does  not  tend  to  bring  the  case  within  the  letter  or  the  spirit 
of  the  statute,  for  no  one  has  ever  suggested  that  the  results  of 
specific  constitutional  infection,  which  in  the  present  case  are 
conceded  to  be  congenital  syphilis,  constituted  a  legitimate  charge 
upon  the  industrial  life  of  the  state. ' ' 50 

Where  an  employee  has  a  cardiac  lesion  and)  aggravates  this, 
through  the  unusual  strain  of  bending  heavy  bars,  which  causes 
a  sudden  dilatation  of  the  heart,  resulting  in  death,  such  death  is 
accidental.51  An  employee  having  arterial  sclerosis  suffered  par- 
alysis as  a  result  of  heat  and  over-exertion.  This  was  held  to  be 
an  accident.52  An  employee  in  lifting  a  can)  of  paint  burst  a  blood 
vessel  in  his  lungs  and  died.  This  vessel  had  burst  before  and 
healed  over  but  might  burst  again.  This  was  held  to  be  an  acci- 

50.  Borgstead  v.  Shults  Bread  Co.,  180  App.  Div.  229V  167  N.  Y.  S.  647, 
1  W.  C.  L.  J.  669,  15  N.  C.  C.  A.  639. 

51.  Uhl  v.  Guarantee  Const.  Co.,  174  App.  Div.  571,  161  N.  Y.  S.  659. 

52.  La  Veck  v,  Parke,  etc.,  Co.,,  190  Mich.  604,  157  N.  W.  72,  L.  R.  A. 
1916  D,  1277. 

316 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    138 

dental  injury.53  Where  a  fireman  fell  from  an  engine  which  caus- 
ed a  hemorrhage  of  the  brain  accelerated  by  a  pre-existing  syphi- 
litic condition,  the  resultant  death  was  held  to  be  due  to  the 
accident." 

The  claimant  suffered  an  injury  arising  out  of  and  in  the  course 
of  her  employment,  which  aggravated  and  accelerated  a  weak 
heart  condition  to  the  point  of  total  incapacity  for  work.  It  ap- 
peared that  she  had  this  "weak  heart  condition"  prior  to  her  in- 
jury and  prior  to  entering  the  service  of  this  employer.  Affirming 
an  award,  the  court  said  in  part:  "It  has  been  argued  with 
force  on  behalf  of  the  insurer  that  since  the  harm  to  the  employee 
was  not  wholly  the  effect  of  the  work  but  came  in  large  part 
from  the  previous  weakened  condition  of  the  employee's  heart, 
hence,  either  there  can  be  no  award  of  compensation,  or  it  should 
be  restricted  to  that  part  of  the  injury  which  resulted  directly 
from  the  work,  and  the  part  of  the  injury  which  flowed  from  the 
previous  condition  should  be  excluded.  Even  though  the  premise 
be  sound,  the  conclusion  does  not  follow.  The  act  makes  no  pro- 
vision for  any  such  analysis  or  apportionment.  It  protects  the 
'employee.'  That  word  is  defined  in  part  5,  sec.  2,  as  including 
'every  person  in  the  service  of  another  under  any  contract  of 
hire,'  with  exceptions  not  here  pertinent.  There  is  nothing  said 
about  the  protection  being  confined  to  the  healthy  employee.  The 
previous  condition  of  health  is  of  no  consequence  in  determining 
the  amount  of  relief  to  be  afforded.  It  has  no  more  to  do  with 
it  than  his  lack  of  ordinary  care  or  the  employer's  freedom  from 
simple  negligence.  It  is  a  most  material  circumstance  to  be  con- 
sidered and  weighed  in  ascertaining  whether  the  injury  resulted 
from  the  work  or  from  disease.  It  is  the  injury  arising  out  of  the 
employment  and  not  out  of  disease  of  the  employee  for  which 
compensation  is  to  be  made.  Yet  it  is  the  hazard  of  the  employment 
acting  upon  the  particular  employee  in  his  condition  of  health  and 
not  what  that  hazard  would  be  if  acting  upon  a  healthy  employee 

53.  Southwestern  Surety  Ins.  Co.  v.  Owens,  (Tex.  Civ.  App.),   198  8. 
W.  662,  1  W.  C.  L.  J.  271. 

54.  IPeori*  H.  etc..  Co.,  v.  Industrial  Board,  279   111.  352.  118  N.  B. 
651.  15  N.  C.  C.  A., 632. 

317 


§  138  WORKMEN'S  COMPENSATION  LAWS. 

or  upon  the  average  employee.  The  act  makes  no  distinction  be- 
tween wise  or  foolish,  skilled  or  inexperienced,  healthy  or  diseased 
employees.  All  who  rightly  are  describable  as  employees  come 
within  the  act.  A  high  degree  of  discrimination  must  be  exercised 
to  determine  whether  the  real  cause  of  an  injury  is  disease  or 
the  hazard  of  the  employment.  A  disease  which  under  any  rational 
work  is  likely  to  progress  so  as  finally  to  disable  the  employee, 
does  not  become  a  'personal  injury'  under  the  act  merely  bo- 
cause  it  reaches  the  point  of  disablement  while  work  for  a  sub- 
scriber is  being  pursued.  It  is  only  when  there  is  a  direct  casual 
connection  between  the  exertion  of  the  employment  and  the  in- 
jury that  an  award  of  compensation  can  be  made.  The  substantial 
question  is  whether  the  diseased  condition  was  the  cause,  or  wheth- 
er the  employment  was  a  proximate  contributing  cause.  In  the 
former  case,  no  award  can  be  made;  in  the  latter,  it  ought  to  be 
made. ' ' 55 

Where  deceased,  who  suffered  an  inguinal  hernia  while  laying 
terra  cotta  window  stills,  weighing  75  or  80  pounds  each,  had  a 
prior  structural  weakness  irt  the  region  where  the  injury  oc- 
curred, compensation  was  properly  awarded  his  widow.56 

Deceased  was  suffering  from  an  advanced  aneurism  of  the 
aorta,  and  while  engaged  in  tightening  a  nut  with  a  spanner  th-} 
strain  caused  a  rupture  of  the  aneurism,  resulting  iii  death.  It 
wa«  held  tha,t  death  resulted  from  personal  injury  by  accident 
arising  out  of  the  employment,  and  compensation  was  awarded. 
Lord  Loreburn,  speaking  for  the  House  of  Lords,  said:  ''This 
man  died  from  the  rupture  of  an  aneurism,  and  'the  death  was 
caused  by  a  strain  arising  out  of  the  ordinary  work  of  the  de- 
ceased operating  upon  a  condition  of  body  which  was  such  as  to 
render  the  strain  fatal.'  Again,  'the  aneurism  was  in  such  an 
advanced  condition  that  it  might  have  burst  while  the  man  was 
asleep,  and  very  slight  exertion,  or  strain,  would  have  been  suffi- 
cient to  bring  about  a  rupture.'  *  *  I  do  not  think  wo 

55.  In  re  Madden,  222  Mass.  487,, 111  N.  E.  379,  L.  R.  A.  1916  D  1000; 
In  re  Edward  Johnston,  3rd   A.  R.  U.  S.  C.  C.  157;     In  re, James  Cronin, 
3rd.    A.    R.  U.  S.  C.  C.    157;     In   re    Chas.   E.   Young,   3rd    A.  R.  U.  S. 
C.  C.  158;     In  re  Felix  W.  Mitz,  3rd    A.  R.  U.  S.  C.  C.  159. 

56.  Hurley  v.  Selden-Brech  Const   Co.,  193  Mich.  197,   159  N.  W.  311. 
318 


PERSONAL  INJURY   OR   DKVTIl    BY   ACCIDENT.  §    138 

should  attach  any  importance  to  the  fact  that  then-  was  11..  Mraiu 
or  exertion  out  of  the  ordinary.  If  the  degree  of  exertion  be- 
yond what  is  usual  had  to  be  considered  in  these  cases, 
there  must  be  some  standard  of  exertion,  varying  in  every  traldc. 
Nor  do  I  think  we  should  attach  any  importance  to  the  fact  that 
this  man's  health  was  as  described.  Tf  the  state  of  his  health 
had)  to  be1  considered,  there  must  be  some  standard  of  health, 
varying,  I  suppose,  with  men  of  different  ages.  An  accident 
arises  out  of  thet  employment  when,  the  required  exertion  produc- 
ing the  accident  is  too  great  for  the  man  undertaking  the  work: 
whatever  the  degree  of  exertion  on  the  condition  of  health.  It 
may  be  said,  and  was  said,  that  if  the  Act  admits  of  a  claim  in 
the  present  case,  every  ono  whose  disease  kills  him-  while  he  is  at 
work  will  be  entitled  to  compensation.  I  do  not  think  so,  and 
for  thi3  reason.  It  may  be  that  the  work  has  not,  as  a  matter  of 
substance,  contributed  to  the  accident,  though  in  fact  the  accident 
happened  while  he  was  working.  In  each  case  the  arbitrator  ought 
to  consider  whether,  in  substance,  as  far  as  he  can  judge  on  such  a 
matter,  the  accident  came  from  the  disease  alone,  so*  that  whatever 
the  inaii  had  been  doing  it  would  probably  have  come  all  the  same, 
or  whether  the  employment  contributed  to  it.  In  other  words,  did 
he  did  from  the  disease  alone  or  from  the  disease  and  employment 
taken  together?  Looking  at  it  broadly,  I  say,  and  free  from  over 
nice  conjectures :  "Was  it  the  disease  that  did  it  or  did  the  work 
he  was  doing  help  in  any  material  degree?"57 

A  fireman,  after  having  been  for  some  time  at  work  shoveling 
coal  and  raking  fires  in  the  stokehold  of  a  ship,  had  an  apoplectic 
stroke.  The  medical  evidence  tended  to  prove  that  the  man  was 
in  a  diseased  condition,  and  that  such  a  stroke  would  be  likely 
to  be  brought  on -by  such  exertion.  The  trial  judge  drew  the  in- 
ference that  the  injury  was  caused  by  accident  within  the  mean- 
ing of  tiie  compensation  act.  On  appeal  it  was  held  that  there 
was  evidence  to  support  the  inference.58 

57.  Clover,  Clayton  &  Co.  v.  Hughes,  (1910),  A.  C.  242.  26  T.  L.  Rep. 
359,  3  B.  W.  C.   C.  275,  79  L.  J.  K.  B.  470. 

58.  Broforst  v.  Blomfleld,  6  B.  W.  C.  C.  613. 

319 


§  139  WORKMEN'S  COMPENSATION  LAWS. 

"The  weakniepjs  of  the  deceased  which  predisposed  him  to  this 
form  of  attack  is  immaterial.  The  fact  that  a  man  who  has  died 
from  a  heat-stroke  was  by  physical  debility  more  likely  than 
other?  so  to  suffer  can  have  nothing  to  do  with  the  question 
whether  what  befell  him  is  to  be  regarded  as  an  accident  or  not. '  '59 

§  139.  Aneurism. — Decedent,  while  in  defendant's  employ, 
wass  at  times  required  to  put  forth  considerable  physical  effort 
causing,  on  one  of  these  occasions,  due  to  predisposing  causes, 
an  aneurism.  It  was  held  to  be  an  accident  arising  out  of  and 
in  the  course  of  the  employment.60 

Where  an  aneurism  war,  found  to  be  dnie  to  a  continued 
strain  of  the  employee's  work,  it  was  held  not  to  be  an  accident 
arising  out  of  the  employment.61 

Where  an  employee  died  from  the  rupture  of  an  aneurism, 
six  days  after  being  thrown  from  a  wagon  and  run  over,  it  was 
held  that  the  death  was  due  to  the  accident62 

Where  a  workman  had  an  aneurism  of  the  aorta,,  which  was  so 
far  advanced  that  it  was  apt  \to  burst  at  any  lime,  and  it  did 
burst  in  the  courste  of  his  employment,  at  a,  time  when  he  was 
not  exerting  extraordinary  strain,  it  was  held  to  be  a  compensable 
accident  under  the  English  act.63 

Where  a  post  mortem  disclosed  an  aneurism  of  the  aorta,  and  it 
was  shown  that  deceased  had  strained  himself  three  days  before 
by  heavy  lifting  and  complained  thereof  to  the  time  of  death, 
it  was  held  that  the  death  was  due  to  the  accidental  strain.04 

A  blow  on  the  left  groin  was  held  to  have  been  the  proximate 
cause  of  an  aneurism.65 

59.  Ismay,  Imrie  &  Co.  v.  Williamson.  99  L.  T.  595,  (1908),  A.  C.  437, 
24.     T.  L.  Rep.  8&ll,  1  B.  W.  C.  C.  232,  52  Sol.  Jo.  713,  42  Ir.  L.  A.  213. 

60.  Haskell  &  Barker  Car  Co.  v.  Brown,  64  Ind.  App.  — ,  117  N.  E.  555, 
15.  N.  C.  C.  A.  641;    In  re  Geo.  Hilderbrand,  3rd  A.  R.  U.   S.  C.  C.  139. 

61.  Patoa  y.  William  Dixon,  6   B.  W.   C.  C.  882. 

62.  Martin   v.   City   of  Sacramento,   2   Cal.   I.   A.   C.   692;      Winter  v. 
Atkinson  Frizelle  Co.  37  N.  J.  L.  J.  195,  11  N.  C.  C.  A.  180. 

63.  Clover  Clayton  &  Co.  v.  Hughes,  3  B.  W.  C.  C.  275  H.  L. 

64.  Draper  v.  Lore  &  Co.,  1  Cal.  I.  A.  C.  132. 

65.  McKenzie  v.,  Pullman  Co.,  2  Cal.  I.  A.  C.  984. 

320 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    140 

"It  was  found,  on  the  post  mortem,  on  undisputed  evidence, 
that  the  death  was  due  to  rupture  of  an  aneurism.  It  also  ap- 
pears that  this  is  a  disease  which  does  not  generally,  and  in  this 
particular  case  did  not,  arise  suddenly;  it  was  probably  of  long 
standing.  The  artery  was  in  a  bad  condition,  but,  as  always 
happens,  the  moment  came  when  the  walls  of  the  artery  broke,  and 
the  blood  came  out,  and  death  followed  almost  immediately.  Now 
what  is  the  necessary  result  of  those  facts,  all  of  which  I  think 
are  beyond  contest  and  beyond  dispute?  In  the  first  place,  it 
seems  to  me  that,  within  the  definition  given  by  the  House  of 
Lords  on  more  than  one  occasion,  of  an  accident,  this  was  clearly 
an  accident,  and  I  cannot  bring  myself  to  doubt  that  it  was  an 
accident  within  the  meaning  of  Lord  Macnaghten's  oft  quoted  and 
oft  approved  judgment  in  Fenton  v.  Thorley  &  Co.,  Ltd.  (1903), 
A.  C.  443 ;  5  W.  C,  C.  1,  nor  do  I  think  there  is  any  doubt  that 
it  was  also  an  accident  within  the  meaning  of  the  judgment  of 
the  majority  of  the  court  in  Clover,  Clayton  &  Co.,  Ltd.,  V. 
Hughes  (1910),  A.  C.  242;  3  B.  W.  C.  C.  275.  If  it  was  an  acci- 
dent it  is  said  that  it  still  may  not  be  an  accident  arising  out  of 
the  employment.  It  may  be  that  he  was  not  doing  anything  at 
the  time,  or  shortly  before  the  time  of  death,  which  in  any  way 
could  contribute  to  it  or  accelerate  the  fatal  end.  The  artery 
must  have  been  broken,  the  aneurism  must  have  been  ruptured, 
at  some  time,  and  in  the  natural  course  of  events  it  would  have 
been  long  distant.  But  we  have,  as  it  seems  to  me,  to  deal  with 
the  rupture  of  the  aneurism  at  the  particular  time  at  which  it 
was  ruptured."88 

§  140.  Anthrax. — Wlu-ro  an  employee  contracted  anthrax 
from  handling  hides,  the  germs  entering  a  fissure  on  the  back 
of  his  hand,  caused  by  a  previous  handling  of  hides,  the  disability 
caused  by  the  anthrax  was  held  to  be  due  to  an  accident.87 

Where  anthrax  bacilli  alighted  in  the  eye  of  a  wool  sorter, 
it  was  considered  the  same  as 'if  a  spark  from  an  anvil  had  struck 

66.  McArdle  v  'Swansea  Harbor  Trust.  8  B.  W.  C.  C.  489,  11  N.  C.  C. 
A.  175. 

87.  Heirs  v.  Hull  &'Co.,  178  App.  Div.  350,  164  N.  Y.  8.  7«7;  Mo- 
cauley  v.  Imperial  Wollen  Co.,  261  Pa.  312,  104  Atl.  617,  2  W.  C.  L.  J. 
932;  Henry  v.  G.  Levor'ft  Co.,  8  N.  Y.  St.  Dep.  Rep.  388. 

321 

W.  C.— 21 


§  140  WORKMEN'S  COMPENSATION  LAWS. 

the  eye  and  was  held  to  be  an  accident  arising  out  of  the  employ- 
ment.68 

Where  a  gamekeeper  handled  an  animal  which  a  few  days  after- 
ward died  of  anthrax  and  within  a  few  days  from  the  time  of 
handling  the  animal,  the  gamekeeper  died  of  the  same  disease, 
it  was  held  not  proven  that  there  was  an  accident.69 

"When,  however,  death  results  from  germ  infection,  to  bring  a 
case  of  this  character  within  the  act  of  1915,  the  disease  in  ques- 
tion must  be  a  sudden  development  from  some  such  abrupt  vio- 
lence to  the  physical  structure  of  the  body  as  already  indicated, 
and  not  the  mere  result  of  gradual  development  from  long-con- 
tinued exposure  to  natural  dangers  incident  to  the  employment 
of  the  deceased  person,  as  in  cases  of  occupational  diseases,  the 
risks  of  which  are  voluntarily  assumed.  Here  the  anthrax  germ, 
a  distinguishable  entity,  came  into  actual  contact  with  the  de- 
ceased, thus  gaining  an  entrance  into  his  body,  and  his  neck 
began  to  swell  and  discolor;  therefore  the  complaint  from  which 
McCauley  died  can  be  traced  to  a  certain  time  when  there  was 
a  sudden  or  violent  change  in  the  condition  of  the  physical  struc- 
ture of  his  body,  just  &s  though  a  serpent,  concealed  in  the  materi- 
al upon  which  he  was  working  had  unexpectedly  and  suddenly 
bitten  him.  See  Heirs  v.  Hull  &  Co.,  178  App.  Div.  350,  352, 
164  N.  Y.  Supp.  767.  "70 

Where  there  was  no  evidence  as  to  whether  hides  such  as  those 

handled  bv  deceased  have  anthrax  bacteria,  or  as  to  the  manner 
\* 

in  which  anthrax  may  be  transmitted  to  men,  it  was  error  for  the 
Industrial  Commission  to  presume  that  an  employee,  who  received 
a  cut  on  his  neck  while  not  engaged  in  his  duties,  and  died  from 
anthrax  while  employed  in  a  tannery,  had  received  the  injury  in 
the  course  of  his  employment.71 

68.  Higgens  v..  Campbell,  1  K.  B.  328. 

69.  Sherwood  v.  Johnson,  5  B.  W.  C.  C.  686. 

70.  McCauley  v.  Imperial  Wollen  Co.  et  al,.  261  Pa.  312,  104  Atl.  617, 
17  N.  C.'C.  A,  864. 

71.  Eldridge  v.  Endicott.  Johnson  &  Co.^  — N.  Y,  App.—,   (1920),  126 
N.  E.   254,  5  W.   C.'L.  J.  716. 

322 


i'KKSONAL  INJURY  OB  DEATH   BY  ACCIDENT.  §    141 

§  141.  Appendicitis. — In  a  case  where  a  workman  fell  and  in- 
jured his  ankle,  and  after  remaining  in  bed  for  a  month,  died  of 
appendicitis  peritonitis,  and  there  was  a  conflict  in  the  medical 
testimony  as  to  whether  the  disease  was  caused  by  the  accident, 
it  was  held  that  there  was  sufficient  evidence  that  his  death  resulted 
from  the  accidental  injury. 7- 

It  was  held  that  appendicitis  result  ing  from  a  strain  or  heavy 
Mow  was  an  industrial  injury.73 

Where  a  workman  claimed  that  appendicitis  resulted  from  a  fall 
it  was  held  that  he  had  not  proved  that  the  injury  arose  out  of  the 
employment,  and  compensation  was  denied.74 

In  an  Ohio  case,  the  commission  said:  "The  question  as  to  wheth- 
er an  injury  may  cause  appendicitis  to  develop  is  largely  a  medical 
question.  It  is  the  opinion  of  the  physicians  who  attended  the  de- 
cedent and  who  operated  upon  him  for  appendicitis  that  the  in- 
jury was  responsible  for  the  disease  from  which  he  died.  Our  own 
Medical  Department  is  just  as  positive  that  the  death  of  decedent 
was  not  caused  by  the  injury  and  it  is  stated  that  trauma  has  never 
been  recognized  by  the  medical  profession  as  a  possible  cause  for 
appendicitis.  After  giving  all  of  the  evidence  submitted  to  us  care- 
ful consideration,  we  conclude  that  the  proof  is  not  sufficient  to 
establish  the  fact  that  appendicitis  was  caused  by  the  injury.  That 
th"  injury  occurred  and  was  followed  more  than  a  year  thereafter 
by  appendicitis  does  not  prove  that  the  one  was  the  cause  of  the 
other.  As  nothing1  of  a  substantial  nature  has  been  offered  in  sup- 
port of  the  theory  that  there  is  any  causal  connection  between 
the  two.  we  conclude  that  the  proximate  cause  of  the  death  of 
deceased  was  appendicitis. ' '  ™ 

72.  Enman  v.  Dalziel  &  Co.,  6  B.   W.  C.   C.  900  Ct.  of  Sess.,  50  Scot. 
L.  R.  143. 

73.  McDonough  v.  Scott  Company,  3  Cal.  I.  A.   C.  225;     Davis  v.Mc- 
Donald  &  Kahn,  3  Cal.  I.  A.  C.  84;   Lindquest  v.  Holler,  178  App.   Div. 
3-lff,  164  N.  Y.  S.  906;     Stolte  v.  N.  Y.  State  Sewer  Pipe  Co,  179  App. 
Div.  949.  165  X.  Y.  S.  114. 

74.  Dube    v.    Clayton    Bros.  Inc.,  1  Conn.  Comp.  Dec.  441. 

75.  In  re  Gardner,  4  Ohio,  1.  Comm.  21;    In  re  Geo.  Bosley.  3rd  A.  K. 
U.  S.  C.  C.  106;   In  re  Earl  W.  Graham,  2nd  A.  R.  U.  S.  C.  C.  144. 

323 


§  142  WORKMEN'S  COMPENSATION  LAWS. 

§  142.  Apoplexy. — An  employee,  while  assisting  another  to 
lift  a  200  pound  barrel,  was  seized  with  a  stroke  of  apoplexy,  by  rea- 
son of  the  unusual  strain  occasioned  by  the  lifting.  This  was  held 
to  be  a  compensable  accident.76 

"It  is  insisted  that  no  'unexpected  or  unforeseen  event,  happen- 
ing suddenly  and  violently '  occurred ;  that  sickness  arising  from  the 
placing  of  his  body  by  plaintiff  against  the  beams  and  surging  back 
and  forwards  could  not  be  said  to  be  'an  unforeseen  event;'  and 
that  it  did  not  happen  suddenly  and  violently  except  as  it  was  oro- 
duced  by  plaintiff  himself.  It  is  said  that  the  language  '  was  clearly 
meant  to  limit  recoveries  to  accident  such  as  the  breaking  of  ma- 
chinery, or  the  unexpected  cutting  or  wounding  employee's  person 
by  some  breaking  or  falling  or  exploding  of  apparatus,  machinery 
or  tools.'  To  hold  this  would  unduly  limit  the  meaning  of  Miis 
clause  (Neb.  Kev.  St.  1913,  §  3693).  The  unforeseen  event  was 
the  straining,  weakening  of  lesion  of  the  blood  vessels  of  the  brain 
or  stomach,  and  this  was  an  unforeseen  event  happening  suddenly. 
It  is  also  said  that  no  'objective  symptoms'  of  an  injury  appeared 
at  the  time,,  and  that  these  elements  are  essential.  We  agree  witn 
this  argument  so  far  that  the  accident  must  produce  'at  the  time 
objective  symptoms  of  an  injury, '  but  the  difficulty  is  as  to  what 
constitutes  objective  symptoms.  Defendant's  idea  is  that  by  ob- 
jective symptoms  are  meant  symptoms  of  an  injury  which  can  be 
seen,  or  ascertained  by  touch.  We  are  of  the  opinion  that  the  ex- 
pression has  a  wider  meaning,  and  that  symptoms  of  pain  and  an- 
guish, such  as  weakness,  pallor,  faintness,  sickness,  nausea,  expres- 
sions of  pain  clearly  voluntary,  or  any  other  symptoms  indicating 
a  deleterious  change  in  the  bodily  condition  may  constitute  ob- 
jective symptoms  as  required  by  the  statute.  77 

It  was  held  that  where  a  stroke  of  apoplexy  which  may  or  may 
not  have  been  brought  on  by  a  strain  or  over  exertion,  is  not  an  in- 

76.  Fowler  v.  Risedorph  Bottling  et.  al.,  175  N.  Y.  App.  Div.  224,  161 
N.  Y.  Supp.  535,    14    N.  C.  C.  A.  533;    In  re   John    Nymark,  2nd  A.  R. 
U.  S.  C.  C.  94. 

77.  Manning  v.  Pomerene,  101  Neb.  ,127,   162  N.  W.  492. 


324 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    142 

jury  suffered  by  accident,  where  there  is  no  evidence  that  the  work 
subjected  the  workman  to  any  serious  strain.78 

Where  a  ship 's  stoker  was  found  in  a  condition  of  heat  apoplexy 
near  his  work,  it  was  held  not  to  have  been  proved  that  his  work 
caused  his  condition  and  that  therefore  it  was  not  a  compensable 
accident.79 

Where  there  has  been  no  accidental  injury  which  aggravates  or 
brings  on  apoplexy,  it  is  not  accidental.80 

It  was  held  that  there  was  not  sufficient  proof  of  accident,  where 
an  injured  workman  died  from  a  stroke  of  apoplexy  a  fortnight 
after  he  returned  to  work.81 

A  teamster  accidentally  fell  from  his  wagon,  receiving  injuries  to 
the  left  elbow  and  hip.  He  was  taken  to  his  home  and  put  to  bed 
without  losing  consciousness,  but  three  hours  after  the  accident  be 
suffered  an  apoplectic  stroke,  resulting  in  paralysis,  for  which  he 
applied  for  compensation.  All  the  experts  but  one  testified  there 
was  no  connection  between  the  fall  and  the  stroke.  Compensation 
was  allowed.82 

In  the  opinion  of  the  attending  physician  a  thrombus  or  an  em- 
bolism may  have  caused  the  death  of  a  laborer  who  died  suddenly 
in  bed  five  or  six  months  after  an  accident  that  had  seriously  in- 
jured his  head  and  body.  The  Appellate  Division  affirmed  an 
award  to  his  family,  unanimously  and  without  opinion.83 

78.  Barnabas  v.  Bersham    Colliery  Co.,  102    L.  T.  R.  621,    3  B.    W. 
C.  C.  216,  55  Sol.  J.  63,  4  B.  W.  C.  C.  119;    In  re  Thomas  Cunningham. 
3rd  A.  R.  U.  S.  C.  C.  115;    Lesko  v.  Lehigh  Valley  Coal  Co.,  —  Pa.  — 
(1921),    112  Atl.  768. 

79.  In  re  John  M.  Cahill,  3rd  A.  R.  U.  S.  C.  C.  105,  Olson  v. Owners 
of  S.  S.  "DorsetV   6  B.  W.  C.  C.  658;    In   re  Wm.  Walker,   3rd.  A.  R. 
U.  S.  C.  C.  115. 

80.  Ledoux  v.   Employer's   Liability   Assur.   Corp.,   2   Mass.  I.  A.  Bd. 
493. 

81.  Warnock  v,  Glasgow  Iron  &  Steel  Co.  Ltd.,  6  F.,  474  Ct.  of  Sess. 

82.  Selaya  v.   Ruthven  &  Cerrano,  5   Cal.  I.  A.  C.  238;    State  ex   rel. 
Geo.   D.  Taylor   &   Sons  v.  District  Court  of  Ramsey  Co,  —    Minn.  — 
(1921),  179  N.  W.  217,  6  W.  C.  L.  J.  698. 

83.  Judice  v.  Degnon.  Constructing  Co..   181  N.  Y.  App.  Div.  909;   167 
N.  Y.Q.  1107.   Casey  v.  Borden's   Condensed  Milk  Co.,   182  N.  Y.    App. 
Div.  907,  168  N.  Y.  S.  1104. 

326 


§  143  WORKMEN'S  COMPENSATION  LAWS. 

§  143.  Artery  Rupture. — Deceased  was  always  regarded  as  a 
strong  healthy  man  and  worked  regularly,  except  occasionally 
when  he  indulged  in  liquor  to  excess.  While  pushing  a  mine  ear 
up  grade  he  complained  of  his  side,  and  died  three  hours  there- 
after of  a  rupture  of  the  .aorta.  A  diseased  condition  existed  at  the 
place  of  rupture  as  shown  by  its  unnatural  thinness.  It  was  held 
to  be  a  personal  injury  by  accident,  as  it  hastened  to  a  fatal  ter- 
mination an  ailment ;  and  this  even  under  the  rule  requiring  that 
a  definite  occurrence  must  be  indentified  in  order  that  a  certain 
injury  may  be  said  to  be  accidental.84  A  laborer  became  ill  while 
at  work  and  died  the  same  day.  An  autopsy  disclosed  a  rupture  of 
the  aortic  artery.  Compensation  was  claimed  on  the  theory  that 
the  aneurism  was  caused  or  aggravated  by  an  injury  which  the 
deceased  had  sustained  five  days  previous.  It  was  held  that  the 
claimant  did  not  prove  this,  and  that  indications  were  that  the 
aneurism  was  due  to  disease  rather  than  injury.85  In  connection 
with  this  case  it  must  be  remembered  that  the  word  "accident" 
is  not  used  in  the  Massachusetts  Act. 

A  quarry  laborer  using  a  sixteen  pound  sledge  suffered  a  pul- 
monary hemorrhage  from  which  he  died  before  medical  aid  could 
reach  him.  "The  evidence  warranted  a  finding  that  the  physical 
structure  of  the  man  gave  way  under  the  stress  of  his  usual 
labor.  He  certainly  did  not  intend  to  kill  himself  by  breaking 
rock  and  loading  cars  at  a  price  per  car.  He  did  not  know  or 
in  any  event  was  inattentive  to  the  limited  power  of  his  blood 
vessels  to  resist  blood  pressure  aggravated  by  vigorous  muscular 
effort,  out  of  this  ignorance  or  miscalcjulationi  of  forces  came 
misadventure,  and  the  term  accident  applies  to  what  happened 
to  him."86 

"Where  an  employee  died  in  the  course  of  his  employment  from 
a  rupture  of  the  aorta,  caused  by  "an  extra  effort  in  vomiting," 

84.  Indian   Creek  Coal  &  Mining   Co.  v.  Calvert,    (Ind.  App<)    119  N. 
E.  519    (1918),  2    W.    C.  L.  J.  230;     Southwestern    Surety    Ins.    Co.  v. 
Owens,  —  Tex.  Civ.  App.  — ,  198  S.  W.  662,  1  W.  C.  L.  J.  271. 

85.  In  r£  Knight,  231  Mass.  142,  120  N.  B.  395  (1918). 

86.  Gilliland  et  al.,  v.  Ash  Grove  Lime  &  P.  C.  Co.,  104  Kan.  771,  180 
Pac.  793,  4  W.  C.  L.  J.  187. 

326 


I'KICSONAL  INJURY  OR   DEATH    BY  ACCIDENT.  §    143 

brought  on  by  conditions  arising  in  the  employment,  a  claimant, 
irrespective  of  anterior  causes,  or  pre-existing  condition,  was  en- 
titled to  compensation,  as  the  rupture  itself  occurring  from  such 
effort  would  constitute  accidental  "violence  to  the  physical  struc- 
ture of  the  body."87 

An  employee  while  working  in  a  lumber  yard  moved  quickly  in 
order  to  avoid  being  struck  by  a  fall,  and  in  doing  so  made  a  sud- 
den backward  movement  of  his  head  which  caused  him  considerable 
pain.  The  following  day  paralysis  resulted,  and  he  died  later.  An 
autopsy  revealed  that  the  d.-ath  was  due  to  glioma  or  brain  tumor 
which  is  not  of  accidental  origin.  Therefore  the  contention  that 
death  was  due  to  a  rupture  of  a  cerebral  blood  vessel  was  over- 
ruled.88 

' '  In  the  instant  case  all  the  characteristics  of  an  accident  were 
present.  The  occurrence  was  sudden,  unexpected,  and  undesigned 
by  the  workman.  The  circumstances  were  clearly  such  that  the 
commission  was  justified  in  finding  that  the  hemorrhage  was  due 
to  blood  pressure  intensified  by  vigorous  muscular  exertion.  Re- 
lating the  hemorrhage  to  physical  exertion,  rupture  of  the  aorta  by 
force  from  within  was  as  distinctly  traumatic  as  if  the  canal 
had  been  severed  by  violent  application  of  a  sharp  instrument 
from  without.  There  was  no  direct  evidence  of  extraordinary 
•exertion  suddenly  displayed.  When  last  observed  before  the  hem- 
orrhage, the  deceased  was  working  in  the  manner  habitual  to  his 
employment.  The  fact  remains  however,  that  an  extraordinary  and 
nn foreseen  thing  suddenly  and  unpremeditatedly  occurred,  and 
the  presence  of  all  essential  attributes  of  accident  cannot  be  gain- 
said. There  was  ample  evidence  in  the  record  to  justify  the  find- 
ing of  the  Industrial  Commission  that  the  deceased  came  to  his 
death  by  accident,  and  the  circuit  court  therefore  properly  con- 
firmed the  award.  Peoria  Terminal  Co.  v.  Industrial  Board,  279 
111.  352,  116  N.  E.  651;  Western  Electric  Co.  v.  Industrial  Com., 

87.  Clark   v.  Lehigh  Valley   Coal  Co.,  264    Pa.  529,  107  All.    858,  4  W. 
C.  L.  J.  747. 

88.  Babo  v.  Blinn    Lumber  Co.,  1    Cal.  I.  A.  C.  Dec.  (1914)   45.7    N. 
C.  C.  A.  651;     Barnabas  v.  Bersham  Colliery  Co.,  103  L.  T.  513,  55  Sol. 
J.  63,  4  B   W.  C.  C.  119.  7  N.  C.  C.  A.  652. 

327 


§  144  WORKMEN'S  COMPENSATION  LAWS. 

285  111.  279,  120  N.  E.  774.  In  Schroetke  v.  Jackson-Church  Co., 
193  Mich.  616,  160  N.  W..  383,  L.  -R.  A.  1917D,  64.  "89 

§  144.  Arterio-Sclerosis. — It  was  held  that  where  the  evidence 
as  to  whether  an  employee's  disability  arose  out  of  an  injury 
he  had  sustained  was  conflicting,  but  there  was  sufficient  evidence 
to  sustain  the  finding  of  the  district  court  that  it  did;  the  finding 
was  not  disturbed  on  appeal,  although  there  was  testimony  by 
two  physicians  that  the  employee's  condition  was  the  result  of 
progressive  arterio-sclerosis.90 

"Either  the  alleged  heat  prostration  caused  the  cerebral  hem- 
orrhage or  it  was  the  result  of  hardening  of  the  arteries,  and  may 
have  been  superinduced  by  the  heat  prostration,  we  cannot  say 
that  either  of  said  propositions  has  been  established  by  a  pre- 
ponderance of  the  evidence.  If  an  inference  favorable  to  the 
applicant  can  only  be  arrived  at  by  guess,  the  applicant  fails."91 

Compensation  was  denied  on  the  ground  that  the  workman's 
death  may  have  been  due  to  arterio-sclerosis  existing  prior  to  the 
injury.92  But  where  an  accident  aggravated  a  pre-existing  condi- 
tion of  multiple  sclerosis  compensation  was  allowed.93 

"While  the  evidence  showed  that  the  employee  at  the  time  and 
for  two  years  prior  to  the  accident  had  been  suffering  from 
arterio-sclerosis,  it  was  held  that  the  strain  upon  the  arteries 
caused  by  over  exertion  and  excessive  heat  resulted  in  the  rupture 
of  a  blood  vessel  in  the  brain,  causing  paralysis.94 

Where  a  workman  suffered  from  vertigo  after  an  accident,  it 
was  held  to  be  due-  to  a  pre-existing  condition  of  arterio-sclerosis, 
and  not  to  the  accident.95 

89.  E.  Baggot  Co.   v.  Indus   Comm.,  —111.  — ,  125  N.  E.  254,  5  W.  C. 
L.  J.   202. 

90.  Manning  v.  Pomerene,  101  Neb.  127,  162  N.  W.  492. 

91.  Stinnette  v.   Gillispie   Co,   Second  Rep.   Ky.  Leading  Dec.  p.  5. 

92.  Tucillo  v.  Ward  Baking   Co., '  180  App.   Div.  302,  167  N.   Y.  Supp. 
666,  15  N.  C.  C.  A.  638. 

93.  Blackburn  v.    Coffeyville  Vitrified   Brick  &    Tile   Co.,  —  Kan.  — 
(1920),  193  Pac.  351,  7  W.  C.  L.  J.  58. 

94.  La  Veck  v.  Park  Davis  &  Co.,  190  Mich.  604,  157  N.  W.  72,  L.  R. 
A.  1916  1D.  1277. 

95.  Carter  v.  Llewellyn  Iron  Wks.,  2  Cal.    I.  A.  C.  D.  971. 

328 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    148 

Where  it  does  not  appear  that  a  cerebral  hemorrhage  is  due  to 
an  unusual  strain  or  effort  in  the  course  of  the  employment  but 
rather  to  pre-existing  arterio-sclerosis,  compensation  will  be  de- 
nied.9" 

Compensation  was  awarded  where  an  accident  was  followed  by 
arterio-sclerosis  and  other  disabling  conditions.87 

Where  one  physician  testified  that  dilation  of  the  heart  and 
arterio-sclerosis  was  caused  by  the  accident,  and  the  expert  ap- 
pointed by  the  commission  was  unable  to  state  whether  it  was 
or  not,  compensation  was  awarded." 

§  145.  Artificial  Limb  Broken. — The  breaking  of  an  artificial 
limb  is  not  an  accident  within  the  meaning  of  the  compensation 
act," 

The  repair  of  an  artificial  limb  which  was  furnished  to  the  em- 
ployee, by  the  commission,  is  a  valid  claim  under  the  Federal 
Act.1  The  California  Act  was  amended  in  1921  to  include  arti- 
ficial members  §  3  [4]. 

§  146.  Artificial  Teeth  Broken.— It  has  been  held  that  the 
breaki'ng  of  artificial  teeth  firmly  attached  to  natural  roots  is  a 
personal  injury.2 

§  147.  Artificial  Eye  Broken. — The  breaking  of  an  artificial 
eye  is  not  a  compensable  accident,3  neither  is  the  breaking  of 
an  eyeglass,  as  a  result  of  a  fall,  a  personal  injury.4 

§  148.  Asphyxiation. — Claimant's  decedent  was  discovered  in 
an  unconscious  condition  near  a  stopcock  from  which  gas  was 

96.  In  re  Mrs.  Alfred  Haries.  Vol.  1.  No.  7,  Bui  Ohio  I.  C.  101. 

97.  Rouda  &  Spick  v.  Heenan,  3  f'al.  I.  A.  C.  D.  36. 

98.  Welch   v.  C.  F.   Weber  ft    Co.,  2   Cal.    I.  A.  C.  693;     Fowler  v. 
Risedorph  Bottling  Co.,  175  App.  Div.  224,  161  N.  Y.  Supp.  535. 

99.  Re  Eulogio  Rodriguez  Op.    Sol.  Dep.  C.  &  L...  p.  189.          , 

1.  In  re  Alonzo  N.  Babcock,  2nd  A.  R.  U.  8.  C  .  C.  234. 

2.  Robinson  v.  Glendale  Hardware  Co.,  3  Cal.  I.  A.  C.  376. 

3.  In  re  Christian  W.  Honold  2nd  A.  R.  U.  8.  C.  C.  ZS2. 

4.  In  re  Sadie  M.  Miller,  3rd  A.  R.  U.  S.  C.  C.  171. 

329 


§  149  WORKMEN'S  COMPENSATION  LAWS. 

escaping.  It  was  his  duty  to  open  the  stopcock  daily.  In  af- 
firming an  award  in  claimant's1  favor  the  court  said :  "If  the  owner 
of  an  automobile  was  found  unconscious  in  his  closed  garage, 
with  the  engine  to  his  car  running,  would  not  one  familiar  with 
like  situations  at  once  say  he  had  been  overcome  by  inhaling  the 
exhaust  from  the  engine?  The  inferences  to  be  drawn  from  the 
circumstances  in  the  instant  case  are  of  like  kind  to  that  drawn 
in  the  suppositions  case,  though  perhaps  differing  in  degree."5 

Where  a  workman  wasi  found  dead  from  asphyxiation  in  a  room 
with  doors  locked  and  gas  cock  open,  it  was  held  not  to  have 
been  proved  that  the  death  was  due  to  an  accident  that  arose 
out  of  the  employment.6 

Where  two  employees  were  found  dead  from  asphyxiation  in 
a  wine  tank,  the  commission  found  that  the  evidence  was  in- 
sufficient to  establish  wilful  misconduct  in  the  violation  of  a  rule 
and  awarded  compensation.7 

Death  by  asphyxiation  while  working  in  a  mine  is  an  accident 
within  the  meaning  of  the  compensation  act.8 

§  149.  Assaults. — The  accidental  shooting  of  a  salesman,  who 
had  accompanied  a  local  dealer  on  an  auto  trip,  by  a  posse, 
who  had  mistaken  the  occupants  for  auto  thieves  was  held  to  be 
an  accidental  injury  arising  out  of  the  employment.  The  court 
said:  "The  finding  that  the  injury  to  Wold  was  accidental  must 
be  sustained,  for  there1  is  no  evidence  that  any  of  the  shooters 
intended  to  hit  the  occupants  of  the  car.  At  most  they  purposed 
to  puncture  the  tires  so  as  to  recover  the  car  or  apprehend  the 
supposed  criminals  in  charge  of  it.*'9 

(  'L':|-  ! 

5.  Holnagle  v.  Lansing  Fuel  &  Gas  Co.,  200  Mich.  132,  166  N.  W.  843. 

6.  Gray  v.  Sopwith  Aviation  Co.,  119  L.  T.  R.  194. 

7.  United  States  'F.  &  G.  Co.  v.  Industrial  Ace.  Com.  of  Cal.  163  Pac. 
1013,  15  N.  C.  C  A.   150;     Coady  v.  Igo.  91   Conn.  54,  98  Atl.   328,  15  N. 
C.  C.  A.  457. 

8.  Larr  v.   Hecla  Coal  &   Coke  C.,  —Pa.—  (1920),  109  Atl.  224,  5  V\. 
C.  L.  J.  904. 

9.  Wold  v.  Chevrolet  Motor  Co.,  —Minn.—  (1920),  179  N.  W  219,  6  W. 
C.  L.  J.  699, 

330 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    152 

Injury  resulting  to  an  employee  while  at  work  in  the  master's 
business,  when  assaulted  by  a  fellow  employee  is  "an  accidental 
personal  injury  arising  out  of  the  employment"  within  the  mean- 
ing of  that  term  as  used  in  the  Oklahoma  Compensation  Act.10 

§  150.  Asthma. — Where  an  employee  suffered  from  asthma 
and  heart  trouble  as  a  result  of  breathing  dust  which  he  stirred 
up  in  his  work,  it  was  held  that  the  disability  was  not  due  to  an 
accident  and  compensation  was  denied.11 

§  151.  Bends. — Where  an  employee  sustained  "Bends"  which 
is  in  the  nature  of  a  rupture  of  internal  organs,  due  to  the 
release  of  the  compressed  air  under  which  the  employee  was 
working,  it  was  held  to  be  an  accidental  injury  and  compensable.1' 

§  152.  Blood  Poison. — "The  evidence  is  quite  satisfactory 
that  the  blood  poisoning  and  the  ensuing  death  were  the  result 
of  the  scratch.  The  medical  testimony  is  to  that  effect  and  the 
sequence  of  events  leaves  very  little  doubt  on  that  point.  That 
the  scratch  was  received  while  he  was  engaged  in  his  employment 
is  not  so  clear.  There  was  no  direct  evidence  that  the  scratch 
was  so  received.  We  think,  however,  the  evidence  is  sufficient. 
The  fact  that  deceased  had  no  scratch  when  he  left  home  in  the 
morning  and  had  one  when  he  came  home  from  work  at  night, 
that  he  must  have}  come  home  immediately,  for  he  was  home 
within  half  an  hour  of  the  time  he  quit  work,  that  the  scratch 
had  blood  upon  it  which  had  hardened,  indicating  that  the  scratch 
had  been  received  earlier  than  the  time  he  quit  work,  that  it 
was  such  a  scratch  as  he  was  not  likely  to  receive  on  a  trip  from 
his  work  to  his  home,  and  such  a  scratch  as  he  might  well  have 
received  while  at  work,  these  facts  taken  in  connection  with  the 
letter  above  quoted,  which  is  of  some  force  as  an  admission,  were 
such  that  the  court  might  infer  that  the  scratch  was  received 

10.  Stasmos  v.  State  Indus.  Comm.,  —  Okla.  —  (1921).  195  Pac.  762. 

11.  Wetherele  v.  American  Hardware  Corp.,  1  Conn.  Com  p.  Dec.  367. 

12.  Re  Wm.  Murray,  Op.  Sol.  Dep.  C.  &  L..,  p.  201. 

331 


§  152  WORKMEN'S  COMPENSATION  LAWS. 

while  deceased  was  in  the  course  of  his  usual  work  and  that  it 
arose  out  of  it."13 

"Where  blood  poisoning  results  from  accidental  injury  it  is  com- 
pensable.14 

"We  perceive  no  merit  in  the  claim  that  this  disability  was  not 
proximately  caused  by  the  injury  and  abrasion  of  the  skin.  Such 
results  do  ensue  from  such  abrasions,and  they  are  brought  about 
by  the  operation  of  what  are  ordinarily  considered  natural  forces ; 
that  is,  by  the  intervention  of  infectious  germs  usually,  or  at 
least  frequently,  present  in  the  air  or  on  the  surface  of  substances 
with  which  any  person  may  come  in  contract,  and  which  are  in- 
visible to  the  eye  and  imperceptible  to  the  senses. '  '15 

Where  an  employee  was  injured,  and,  by  reason  of  lying  in 
bed  for  a  long  time,  developed  a  bed  sore  from  which  blood  poison- 
ing developed  and  caused  his  death,  it  was  held  that  the  accident 
and  not  the  blood  poisoning  was  the  proximate  cause  of  death.16 

An  employee  engaged  in  a  boxing  match  and  aggravated  an  old 
wound,  received  in  the  course  of  employment,  which  had  practically 
healed.  It  was  held  that  the  blood  poisoning  which  resulted 
from  the  aggravation,  and  caused  a  permanent  disability,  was 
the  proximate  cause  of  the  permanent  disability,  and  compensation 
therefor  was  denied.17 

While  a  miner  was  at  work  hewing  coal  a  piece  of  coal  worked 
its  way  into  his  knee,  causing  blood  poisoning.  This  was  held 
to  be  an  injury  resulting  from  accident.18 

A  cake  of  ice  broke  loose  while  being  hauled  up  a  shute  and 
struck  the  employee  on  the  leg  breaking  it.  Two  weeks  thereafter 
while  the  employee  was  in  the  hospital,  blood  poisoning  set  in, 

13.  Rackman    v.    Albert  Dickson  Co.,    139  Minn.  30,  165  N.    W.   478, 
1  W.  C.  L.  J.  422. 

14.  Fleet  v.  Johnson,  6  B.  W.  C.  C.  60;  Burns  case,  218  Mass.  8,  105 
N.  E.  601,  5  N.  C.  C.  A.  635;     White  v.  Ford  Motor  Co.,  W.   C.    &  Ins. 
Rep.  25  (1918),  17  N.  C.  C.  A.  93. 

15.,  Great  Western  Power  Co.  v.  Pillsbury  et  al.,  171  Cal.  69,  151 
Pac.  1136,  L.  R.  A.  1916  A.  281,  11  N.  C.  C.  A.  493.  See  Infection. 

16.     Burns  Case  218  Mass.  8,  105  N.  E.  601. 

117.     Kill  v.  Industrial  Commission,  160  Wis.  549,  152  N.  W.  148. 

18.     Thompson  v.  Ashmgton  Coal  Co.,  84  L.  T.  N.  S.  412,  17  Times  L. 
R.  345. 
332 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    153 

causing  death.  The  commission  said:  "The  injury  was  not  the 
sole  and  proximate  cause  of  death,  but  was  the  exciting  and 
contributory  cause,  and  there  is  a  direct  causal  connection  be- 
tween the  injury  and  the  death."1* 

Where  an  employee  was  troubled  with  pimples,  and  upon  his 
request  a  fellow  employee  opened  a  pimple  in  an  unsanitary 
manner,  and  blood-  poison  resulted  it  can  not  be  said  that  such 
an  injury  resulted  from  an  accident.20 

§  153.  Blood  Vessel  Rupture. — A  workman  stood  in  a  crouch- 
ing position  using  a  20  pound  sledge  for  an  hour  and  a  half,  at 
the  conclusion  of  which  he  accidentally  fell,  his  head  striking  a 
piece  of  granite,  cutting  a  large  gash  over  his  eye.  The  doctor 
testified  that  the  severe  strain  and  falling  on  the  rock  caused 
cerebral  hemorrhage.  It  was  held  to  be  an  accident  "arising  out 
of  and  in  the  course  of  the  employment."21 

A  traveling  salesman  ran  to  catch  a  train,  after  which  he 
suffered  from  dizziness  and  paralysis,  caused  by  a  breaking  of 
a  blood  vessel  in  his  brain.  This  was  held  to  be  a  compensable 
accident.22 

An  employee,  while  lifting  a  heavy  weight,  suffered  a  rupture 
to  a  blood  vessel,  and  the  blood  filtered  through  to  the  abdominal 
cavity,  causing  death.  This  was  held  to  be  a  compensable  injury." 

Where  a  collier,  while  doing  heavy  work  in  building  a  pack, 
was  suddenly  seized  with  apoplexy  and  died,  there  was  evidence 
that  his  arteries  were  greatly  degenerated  and  they  might  have 

19.  Coffee  v.  Bordens  Condensed   Milk  Co.,   1  Conn.  Comp.   Dec.  167. 

20.  Rombellow  v.  Marin  County  Milk  Producers,  1  Cal.  I.  A.  C.  (Part 
2),  87. 

Note:  For  further  cases,  see  same  title  under  the  chapter  on, 
"Arising  Out  Of,''  also  "Infection,''  "Abrasions"  and  "Friction  Injuriee." 
See  11  N.  C.  C.  A.  493. 

21.  State  v.  District  Court  of  Sterna  Co.,  137  Minn.  318,  163  N.  W.  667. 
14  N.  C.  C.  A.  627. 

22.  Crosby  v.  Thorp  Hawley  Co.  et  al.,  206  Mich.  250,  172  N,  W.  635. 
4   W.   C.  L.  J.  245    (1919);     Schroethe  v.  Jackson-Church  Co..  193  Mich. 
616.  160  N.  W.  383;     Clark  v.  Lehigh  Valley  Coal  Co.,  —Pa.—,  107  Atl. 
858,  4  W.  C.  L.  J.  747. 

23.  Greenberg  v    New  Leather  Goods  Co.,   (1916)  3  Cal.  I.  A.  C.  328. 

333 


§  154  WORKMEN'S  COMPENSATION  LAWS. 

ruptured  with  or  without  a  strain.  The  court  held  that;  as  the 
evidence  was  equally  consistent  with  an  accident  having  happened 
or  not  happened,  the  burden  of  proving  an  accident  had  not  been 
discharged.24 

"Where  an  employee  was  cranking  a  coal  delivery  wagon,  and 
the  strain  from  turning  the  crank  caused  a  small  blood  vessel  to 
break  in  the  pial  membrane  of  the  brain,  it  was  held  to  be  an 
accidental  injury.25 

Where  an  employe,  whose  duties  required  great  muscular  strain 
and  exertion,  burst  a  blood  vessel,  causing  death,  it  was  held  that 
the  death  was  due  to  an  accident.26 

Paralysis  resulting  from  rupture  of  a  blood  vessel,  due  to  heat 
and  over  exertion  by  an  employee  having  arterial  sclerosis,  is  an 
accident,  within  the  Michigan  Act.27 

"Where  lifting  a  can  of  paint  caused  a  blood  vessel  in  a  servant's 
lungs  to  burst,  there  was  an  accidental  injury,  and  it  is  immaterial 
that  It  had  burst  before,  but  had  healed  over,  and  might  burst 
again.28 

"Where  an  employee  was  required  to  lift  a  piano  over  the  step 
of  a  stairway  the  court  held  that  the  unusual  lifting  and  straining, 
exertion  and  apprehension,  by  reason  of  the  lack  of  experienced 
help,  constituted  an  accident,  and  a  blood  vessel  rupture  resulting 
therefrom  was  compensable.29 

§  154.  Bolls. — Where  a  dishwasher  suffered  from  boils,  but 
there  was  no  evidence  of  cuts,  scratches,  or  bruises,  or  other  acci- 
dent causing  such  disability,  it  was  held  not  to  be  compensable.''0 

24.  Barnabas    v.  Bersham   Colliery    Co.,  103    L.  T.    513,    55  Sol.  J,    63, 
4  B.    W.  C.  C.  119',   7  N.   C.  C.  A.  651. 

25.  Farrell   v.  Casualty   Co.    of  America,     2  Mass.  Wkm.     C.   C.  423; 
Patrick  v.  J.  B.  Ham  Co.,  —  Me,  —  (1921),  111  Atl.  912. 

26.  State   v.   District ,  Court,   137  Minn.  30,  162  N.  W.  678. 

27.  La  Veck  v.  Park  Davis  &  Co,,  190  Mich.  604,  157  N.  W.  72,  L.  R.  A. 
1916D,    1277,   14  N.  C.  C.  A.  141. 

28.  Southwestern  Surety  Ins.  Co.  v.  Owens,  (Tex.  Civ.  APp.),  198  S.  W. 
662,  1  W.   C.  L.  J.   271. 

29.  St.  Clair   v.  A.  H.   Meyer  Music  House,  —Mich.—  (1920),  178  N. 
W.   705,   6  W.  C.  L.  J.  540. 

30.  Rolph  v.  Morgan,  2  Cal.  I.  A.  C.  543,  11  N.  C.  C.  A.  500. 
334 


PERSONAL  INJURY  OR  DEATH  BY  ACCIM  §  156 

Where  death  resulted  from  nn'iiiniritis  caused  by  a  series  of 
boils,  which  developed  some  montlis  after  the  amputation  of  a 
toe,  made  necessary  as  a  result  of  an  industrial  accident,  it  was 
held  that  the  accident  causing  the  loss  of  the  toe  was  not  the 
proximate  cause  of  the  death,  and  compensation  was  denied; ' 

§  155.  Brass  Poisoning. — Brass  poisoning  is  a  compensable 
injury  under  the  Federal  Act  when  contracted  while  in  the  per- 
formance of  the  employee's  duties.82 

§  156.  Brights  Disease. — Where  a  passenger,  who  had  been 
suffering  from  chronic  B  rights  disease  and  a  valvular  disease  of 
the  heart,  dropped  dead  about  twenty  hours  after  the  derailment 
of  a  car  on  which  he  had  been  riding,  it  was  held  to  be  a  question 
for  the  jury  as  to  whether  the  accident  was  the  cause  of  the 
death.33 

Where  plaintiff  fell  while  carrying  a  package  of  mirrors  which 
fell  on  him,  the  court  held  that  the  evidence  showed  with  at 
least  sufficient  probability  that  Brights  disease  resulted  from  the 
injuries  to  render  it  admissiable  for  the  consideration  of  the  jury. 
Judgment  for  plaintiff  was  affirmed.34 

Where  an  employee  was  injured  by  a  fall,  and  five  days  later  a 
condition  of  acute  Brights  disease  developed1,  but  there  was  no 
evidence  of  physical  injuries  to  the  kidneys,  and  the  medical 
testimony  was  to  the  effect  that  Brights  disease  is  probably  never 
of  traumatic  origin,  compensation  was  denied." 

Where  an  employee  suffered  a  strain  while  pulling  a  bale  of  bur- 
lap and  later  became  incapacitated  for  work  because  of  a  condition 
of  Brights  disease,  it  was  held  there  was  no  connection  between 
the  strain  and  the  disease,  and  compensation  was  denied.88 

Where  an  employee's  foot  became  infected  from  a  blister,  caused 
by  the  rubbing  of  boots  furnished  by  the  employer,  and  the  medical 

31.  Stephens  v.  Clarke,  2  Cal.  I.  A.  C.  135,  11  N.  C.  C.  A.  715. 

32.  In   re  Robert  E.  Hanna,  2nd    A.  R.  U.  S.  C.  C.  152. 

33.  Jones  v.  Public  Service  Ry.  Co.,  86   N.  J.  L.  646,  92  All.  397. 

34.  Houston  &  T.  C.    R.   Co.  v.  Gerald,  60  Tex.  Civ.  App.  151,  128  8. 
W.  166,  15  N.  C.  C.  A.  550. 

35.  Husvisk  v.  Simms,  1  Cal.  I.  A.  C.  266. 

36.  Lima   v.    Aetna   Life    Insur.    Co.  2    Mass.    Wk.  Comp   Cases,  MOO 

335 


§  158  WORKMEN'S  COMPENSATION  LAWS. 

testimony  was  to  the  effect  that  the  injury  and  infection  of  the 
heel  had  poisoned  the  blood  stream  and  caused  Brights  disease, 
the  disease  was  incidental  to  the  injury,  and  the  chain  of  cau- 
sation was  complete  from  injury  to  death.37 

§  157.  Bronchitis. — Where  acute  bronchitis  and  lead  poison- 
ing was  contracted  by  an  employee  as  a  result  of  the  inhalation 
of  gas  fumes  from  an  oxyaeetylene  burning  machine,  this  was  held 
to  be  a  personal  injury  under  the  Federal  Act.  But  it  must  be 
borne  in  mind  that  under  that  act  the  injury  need  not  be  caused 
by  accident.38 

Where  a  workman  suffered  an  injury  from  whose  immediate 
effects  he  recovered,  but  which  left  him  in  such  weakened  condition 
that  he  contracted  influenza  and  died  of  bronchitis  thirteen 
months  after  the  accident,  it  was  held  that  the  death  resulted 
from  the  accident.39 

Where  an  employee  was  injured  by  a  fall  and  later  contracted 
bronchitis  and  intestinal  tuberculosis  it  was  held  that  there  was 
no  causal  connection. between  the  accidental  injury  and  the  disease 
and  compensation  was  denied.40  , 

§  158.  Burns. — Compensation  was  allowed  for  burns  received 
in  the  course  of  the  employee's  employment.41 

.A  stenographer,  employed  by  a  corporation  on  the  fourth  floor 
of  a  building  was  burned  to  death  when  a  fire,  starting  on  one  of 
the  lower  floors  cut  off  her  means  of  escape.  Compensation  was 
awarded  for  accidental  death  arising  out  of  and  in  the  course 
of  the  employment.42 

Where  a  workman  employed  as  a  molder  received  some  slight 
burns  on  his  arm,  and  ten  days  later  erysipelas  developed  at  the 

37.    Wheadon  v.  Red  River  Lumber  Co.,  1  Cal.  I.  A.  C.  640. 
3j8.    In  re  Arato  Op.  Sal.  Dep.  of  L.  264;     In  re  Geo.  J.  Endres,  3rd  A. 
R.  U.  S.  C.   C.  112. 

39.  Thoburn  v.  Bedlington  Coal  Co.,  5  B.  W.  C.  C.  128. 

40.  Swartz  v.  Casualty  Co.  of  America,  2  Mass.  I.  A.  Bd,  728. 

41.  Revita  v.  Royal  Indemnity  Co.,  2  Mass.  W.  C.  C,  352;     Keane  v. 
Employer's  Liability  Assur.  Corp.  1  Mass.  W.  C.  C.  193- 

42.  Newark  Hair,  etc.,  Co.  v.  Fieldman,  89  N.  J.  L.  504,  99  Atl.  602. 
336 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    159 

site  of  the  injuries  and  caused  death,  the  death  was  held  accidental 
and  compensable.48 

"Where  a  baker  sustained  burns  to  his  hands  and  arms  as  a 
result  of  an  explosion  of  natural  gas,  which  was  due  to  the  negli- 
gence of  a  fireman  of  the  bakery  oven,  his  injuries  resulted  from 
an  accident  within  the  meaning  of  the  workmen's  Compensation 
Act.44 

§  159.  Cancer. — Applicant,  while  engaged  as  a  workman,  fell. 
He  made  claim  for  compensation  for  disability  occasioned  by 
sarcoma  or  cancer  on  his  left  clavicle  which  he  contended  was 
the  result  of  the  fall.  Applicant,  his  wife,  and  other  witnesses 
testified  to  the  presence,  three  or  four  hours  after  the  accident, 
of  a  lump  on  the  clavicle  at  the  point  where,  at  the  time  of  the 
hearing,  nearly  all  of  the  experts  testified  there  was  a  sarcoma 
An  x-ray  picture,  taken  of  the  clavicle  three  days  after  the  fall, 
showed  it  to  be  in  normal  condition,  though  the  physician  testified 
that  it  was  sensitive  and  tender.  The  court  affirmed  the  award, 
holding  that,  as  the  evidence  was  conflicting,  the  award  would 
not  be  disturbed.45 

"The  plaintiff  was  sound  in  limb  and  body  prior  to  the  accident. 
No  appearance  or  symptom  of  cancer  was  present  prior  thereto, 
the  malignant  growth  developed  at  the  seat  of  the  injury.  After 
the  injury  plaintiff  was  unable  to  resume  work.  It  is  true  that 
the  cause  of  cancer  cannot  always  be  determined,  but  from  the 
evidence  in  this  case  the  proper  conclusion  is  that  the  injury  was 
the  exciting  cause  of  the  cancer  which  resulted  in  the  loss  of 
plaintiff's  leg."  Compensation  was  awarded.48 

Cancer  was  held  to  be  due  to  an  injury  suffered  in  a  railroad 
accident.47 

43.  Vol.  4,  Bull.  Ohio.  I.  C.  129. 

44.  Adams  v.  Iten  Biscuit  Co.,  — Okla.— ,  162  Pac.  938.  B.  1  W.  C.  L.  .*. 
1480. 

45.  Supar  Co.  of  Santa  Ana  v.  Industrial  Ace.  Comm.,  35  Cal.  App.  652, 
170  Pac.  630  (1918). 

46.  Partin  v.  Union   Tanning   Co..  2d.  Rep.  Ky.  L.   Dec.  110;     In  m 
John  Miller,  2nd.  A.  R.  U.  8.  C.  C.  97. 

47.  Shaw  v.  Chicago,  R.  I.  &  P.  R.  Co..  173  HI.  App.  107,  5  N.  C.  C. 
A.  780 

837 

W.  C.— 22 


§  159  WORKMEN'S  COMPENSATION  LAWS. 

Where  it  is  uncertain  whether  death  was  due  to  an  injury  or 
pre-existing  cancer  the  jury  will  not  be  permitted  to  speculate 
thereon/18 

Where  an  employee,  pricked  his  tongue  with  a  tack  which  he 
held  in  his  mouth  while  putting  up  window  shades,  and  thereafter 
a  cancer  developed  at  said  point,  necessitating  an  operation,  from 
which  he  died,  it  was  held  that  the  death  was  due  to  the  accidental 
injury.49 

The  fact  that  death  from  an  accidental  injury  may  be  hastened 
by  pre-existing  cancer,  does  not  deprive  the  dependent  of  com- 
pensation for  the  death.50 

Where  an  employee  fell  across  a  hot  pipe,  inflicting  injuries 
which  disabled  him  for  a  few  days,  and  six  or  seven  month  later 
a  cancer  developed  which  required  a  series  of  operations,  compen- 
sation was  awarded.51 

Where  an  employee  while,  pushing  a  post  with  his  abdomen, 
suffered  a  rupture  of  an  internal  cancer  and  died,  the  death  was 
held  to  be  accidental.52 

Where  an  accidental  blow  inflamed  a  cancer,  obstructing  the 
ducts  of  the  gall  bladder  and  liver,  causing  death,  the  accidental 
blow  was  held  to  be  the  proximate  cause  of  the  death.53 

Where  an  employee  claimed  to  have  slipped  and  injured  his  leg 
24  hours  before  he  was  found  to  have  cancer  of  the  bone  and 
there  was  no  discernible  bruise,  it  was  held  that  it  had  not  been 
established  that  the  accident  was  the  cause  of  the  disease.6* 

Where  a  workman  was  incapacitated  for  three  months  by  being 
struck  in  the  back,  and  he  died  from  the  after  effect  of  an  operation 
for  cancer,  the  medical  testimony  being  conflicting  &s  to  the  origin 

48.  Malvern   Lumber  Co.   v.    Sweeney,  116   Ark.  561,   172  Si    W.  821,  8 
N.  C.  C.  A.   972;     Ip  re  Wm  H.  Cocklin,  3rd.  A  R.  U.  S.  C  C.  114. 

49.  Cramer  v.  Uttell,  38  N.  J.  L.  J.  82. 

50.  Blatt  v.   Schonberger  &  Noble,  7  N.  Y.  S.  D.  R.  388. 

51.  Richardson  v.  Builder's  Exchange  Assn.,  9  N.  Y.  St.  D.  R.  317. 

52.  Voorhees  v.  Smith  Schoonmaker  Co.,  86  N.  J.  L.  500,  92  Atl.   280. 

53.  Rose  v.  City  of  Los  Angeles,  2  Cal.  I.  A.  C.  D.  551. 

54.  Narcontone  v.  The  Charles  Francis  Frees,  The  Bull.  N.  Y.  Vol.  1, 
No.  12,  p.  16. 

338 


PERSON AT-  INJURY  OR  DEATH    BY  ACCIDENT.  §    161 

of  the  cancer,  it  was  held  that  the  evidence  was  sufficient  to  sup- 
port a  finding  that  death  resulted  from  the  injury." 

Where  gastric  cancer  followed  an  injury,  but  no  evidence  was 
produced  to  show  that  cancer  was  caused  by  the  injury,  compen- 
sation was  denied.86 

Where  a  condition  of  malignant  cancer  termed  carcinoma  was 
aggravated  by  an  injury  and  about  seven  months  thereafter  re- 
sulted in  death  the  death  was  held  to  be  due  to  the  original  injury 
and  compensable.87 

§  160.  Carbuncle. — It  was  claimed  that  a  carbuncle  which  af- 
fected the  spine  causing  extended  disability,  resulted  from  an 
accidental  blow  on  the  employee's  back,  "According  to  medical 
science  carbuncles  are  not  associated  with  germs  introduced  from 
without  but  generally,  if  not  always,  come  from  internal  poison- 
ing, accompanying  a  run  down  condition  of  the  system  which 
existed  in  the  case  of  this  man.  There  is  at  least  a  very  strong 
probablity  that  this  carbuncle,  appearing  in  the  usual  place 
upon  the  body  came  as  a  result  of  some  of  those  causes  which 
generally  produce  carbuncles  and  not  from  anything  which  occurr- 
ed in  connection  with  the  employment.."  Claim  dismissed.88 

§  161.  Cellulitis. — Where  Cellulitis  of  the  joints  of  the  finger 
developed  as  a  result  of  a  partial  amputation,  made  necessary  by 
an  accidental  injury,  such  disability  is,  compensable."* 

Cellulitis  of  the  knee,  caused  by  a  traumatic  injury,  is  a  com- 
pensable injury.60 

55.  Lewis  v.  Port  of  London,  Authority  7  B.  W.  C.  C.  577  C.  A. 

56.  McElligott  v.  Frankford  General  Insurance  Co.,  2  Mass.  Ind.  Ace. 
Bd.  521. 

57.  Whittle  v.   National  Aniline   &  Chemical  Co..  —Pa.—  (1920),  109 
All.  847,  6  W.  C.  L.  J.  103. 

58.  Redmond  v.  Winchester  Repeating  Arms  Co.,  2  Conn.   C.  D.  Pan 
1,  p.  118;     Throm  v.  Estate  of  Malley,  2  Conn.  C  D.  Part  1,  p.  121. 

59.  Feinman   v.  Albert  Mfg.  Co.,  155    N.  Y.  Supp.  »0»,  170  App.    Dlv. 
147. 

60.  In  re  Harry  Lee,  2nd.  A.  R.  U.  S.  C.  C.  98. 

339 


§  163  WORKMEN'S  COMPENSATION  LAWS. 

§  162.  Cerebral  Abscess. — Where  an  employee  died  of  cer- 
ebral abscess  compensation  was  denied  on  the  ground  that  there 
was  no  proof  that  the  abscess  was  of  traumatic  origin.61 

§  163.  Cerebral  Hemorrhage. — Where  a  fireman  fell  from  an 
engine,  which  caused  a  hemorrhage  of  the  brain,  accelerated  by  a 
pre-existing  syphilitic  condition,  the  resultant  death  was  due  to 
the  accident.62 

An  employee  having  arterial  sclerosis  suffered  a  cerebral  hemor- 
rhage as  a  result  of  heat  and  over  exertion.  This  was  held  to  be  a 
compensable  accident.63 

Where  an  employee  fell  from  a  wagon,  but  there  was  no  evidence 
as  to  what  caused  the  fall,  and  he  was  found  in  an  unconscious 
condition  and  died  soon  thereafter  from  cerebral  hemorrhage,  the 
court,  in  reversing  the  award  of  the  board,  said:  "The  board 
in  the  determination  of  questions  of  fact  is  permitted  to  draw 
such  inferences  from  the  evidence  and  all  the  circumstances  as  a 
reasonable  man  could  draw,  but  its  findings  can  not  properly  be 
based  upon  mere  conjecture."64 

A  miner  was  struck  on  the  head  by  a  mine  prop,  but  worked 
for  eight  days  thereafter,  when  he  was  taken  to  the  hospital 
suffering  from  paralysis  of  the  leg  and  arm  and  a  pain  in  his 
head,  and  a  portion  of  the  skull  removed  was  dark  and  discolored. 
The  evidence  was  held  sufficient  to  sustain  the  finding  that  the 
disability  was  due  to  cerebral  hemorrhage  resulting  from  the 
accident.65 

Where  an  employee,  engaged  in  a  hazardous  employment,  suffer- 
ed a  cerebral  hemorrhage,  as  the  result  of  unusual  strain,  it  was 
held  to  be  a  compensable  accidental  injury.  66 

61.  Judson  v.  San  Francisco  Warehouse  Co.,  2  Cal.  I.  A.  C.  677. 

62.  Peoria  R.  etc.,  Co.,  v.  Industrial  Board,  279  111.  $52,  116  N.  E.  651, 

63.  La  Veck  v.  Park  etc.  Co.,  190  Mich.  604,  157  N.  W.  72,  L.  R.  A. 
1916D  1277. 

64.  In  re  Sanderson,  224  Mass.  558,  113  N.  E.  355,  14  N.  C.  C.  A.  141; 
In  re  Thomas  Cunningham,  3rd.  A.  R.  U.  S.  C.  C.  115. 

65.  Frey  v.  Kernes  Donnewald    Coal  Co.,  277  111.  121,  110  N.  E.  824. 

66.  Fowler  v.  Risedorph  Bottling  Co.,  175  App.  Div.  224,  161  N.  Y.  S. 
535;     In  re  O.  E.  Pasco,  3rd  A.  R.  U.  S.  C.  C.  117;     In  re  Cornelius  R. 
Morris,  3rd    A.  R.  U.  S,  G   C.  117. 

340 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    164 

A  cerebral  hemorrhage  which,  is  not  the  result  of  an  accidental 
injury  does  not  entitle  an  employee  to  compensation.01 

Cerebral  hemorrhage  not  occasioned  or  contributed  to  in  any 
way  by  unusual  effort  or  strain  or  traumatism  Js  not  an  injury, 
within  the  meaning  of  the  Ohio  Act.88 

Where  a  mine  employee  inhaled  carbon  dioxide  gas  commonly 
known  amony  miners  as  black  damp,  as  a  result  of  which  he  sus- 
tained a  cerebral  hemorrhage,  which  caused  his  death,  it  was 
held  to  be  a  personal  injury  by  accidenr.09 

Where  an  employee  died  of  cerebral  hemorrhage  brought  on  by 
over  exertion  from  chasing  thieves,  who  were  attempting  to  steal 
the  employer's  property,  his  death  was  held  to  have  been  caused 
by  an  injury,  and  compensation  was  awarded.70 

Where  a  workman  fell  and  struck  his  head,  and  was  rendered 
unconscious  for  half  an  hour,  but  was  not  incapacitated  thereafter, 
but  three  weeks  thereafter  suffered  a  stroke  of  paralysis  and 
died  of  cerebral  hemorrhige,  it  was  held  that  the  death  was  not 
proximately  caused  by  tho  fall.71 

Where  an  employee  wa.s  found  on  the  floor  frothing  at  the 
mouth,  and  next  day  died  of  blood  clot  on  the  brain,  the  court 
found  that  the  award,  founded  upon  said  facts  alone,  was  based 
on  guess  work  and  conjecture,  and  should  therefore  be  reversed.™ 

§  164.  Cerebral  Oedema. — Tt  was  held  that  cerebral  oedema  and 
delirium  tremens,  causing  the  death  of  the  driver  of  an  automobile 

67.  Birnie  vt  Contractor's  Mutual  Liability. Ins.  Co.,  2  Mass.  I.  A.  Bd., 
619;     In    re  John  W.  Powell,  3rd    A     R.  U.   8.  C.  C.  116;     In  re«Wm. 
Walker.  3rd.  A,  R.  U.  S.  C.  C.  115 

68.  In  re  Beck  Vol.  4,  Ind.  C.  of  Ohio  107. 

69.  Giacobbia  v.«  Kerens-Donne wald  Coal  Co.,  111.  I.  Bd.  10  N.  C.  C.  A. 
261;  Kelly  v.  Auchentea  Coal  Co.,  4  B.  W.  C.  C.  417;     In  re  Ellis  Vol.  4*. 
Ind.  C.  of -Ohio  150. 

70.  In  re   Ellen  Fair,  Vol.  1,   No.  7,  Bui.  Ohio  I.  C.  83. 

71.  McAdoo  v,   Cudahy 'Packing  Co.,  2  Cal.  I.  A.  C.  500,  see  also  ai* 
oplexy. 

72.  Haneen  v.    Turner   Const.    Co.,   224  N.   Y.  331,    120  N.   E.  «9S,   17 
N.  C.  C.  A.  787.  -ii 

341 


§  167  WORKMEN'S  COMPENSATION  LAWS. 

truck,  was  the  natural  result  of  a  fractured  wrist  and  lacerations 
of  the  face  and  scalp  suffered;  while  cranking  the  engine.73 

§  165.  Colds. — Colds  resulting  from  ordinary  exposure  are 
"not  due  to  an  injury  sustained  while  in  the  performance  of 
duty"  within  the  meaning  of  the  Federal  Act  and  therefore  not 
compensable.74 

§  166.  Concussion  of  Brain. — Where  a  traveling  salesman, 
after  getting  off  a  ferry  boat,  fell  as  a  result  of  dizziness,  striking 
his  head  and  causing  concussion  of  the  brain  compensation  was 
denied  on  the  ground  that  there  was  no  e  •/ideuce  tending  to  connect 
the  cause  of  the  fall  with  a  risk  incidental  to  or  arising  out  of  the 
work  being  performed.75 

Where  a  workman  was  found  lying  at  the  bottom  of  a  stair, 
which  he  used  in  doing  his  work,  and  was  unconscious  and  suffer- 
ing from  concussion  of  the  brain,  the  court  held  that:  "All  that 
is  known  is  consistent  with  the  natural  view  to  take,  namely,  that 
the  workman  fell  from  the  stair,  there  is  thus  a  prima  facie  case 
for  compensation."76 

Where  an  employee,  through  an  accidental  injury,  suffered  a 
concussion  of  the  brain,  but  recovered  sufficiently  to  work  for  a 
week,  when  he  fell  dead,  compensation  was  awarded  on  medical 
testimony  to  the  effect  that  the  death  was  caused  by  the  injury.77 

A  similar  decision  was  rendered  in  a  case  where  the  employee 
died  about  eight  months  after  suffering  a  concussion  of  the  bruin 
in  an  accidental  fall,  and  had  apparently  recovered  from  its 
effects.78 

§  167.  Death,  Presumption  From,  While  at  Work. — "It  is  said 
Hollenbach's  death  did  not  result  from  electric  shock  because  the 

73.  Bridgeman    v.  McLoughlin,  7  N.  Y.   St.  -Dep.  Rep.  425. 

74.  In  re  Geo.  L.  Snider,  3rd.  A.  R.  U.  S.  C.  C..118. 

75.  Van  Winkle  v.  Johnson  Co.,  2  Cal.  I.  A.  C.  212. 

76.  Fagan  v,  Jack  Bros.,  31  Sheriff  Ct.  R.  (Sc.)  332. 

77.  Deem  v.  -Kalamazoo  Paper  Co.,  189  Mich.  655,  155  N.  W.  584. 

78.  Milwaukee  Coke  &  Gas  Co.,  v.  Industrial  Commission,  160   Wis. 
247,  151  N.  W.  245. 

342 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    167 

voltage  (114)  was  not  sufficient  to  produce  death.  Defendent  was 
a  strong,  able-bodied  man  in  the  full  enjoyment  of  his  faculties  at 
the  time  the  current  struck  him.  The  voltage  may  have  been  less 
than  is  usually  found  to  produce  death.  The  wire  burned  into 
his  flesh.  The  current  was  so  powerful  that  the  other  workmen 
could  not  take  hold  of  his  body  long  enough  to  remove  him  from 
the  wire.  He  died  under  the  current.  In  such  cases  the  presump- 
tion is  that  the  accident  was  the  cause  of  death,  and  this  pre- 
sumption will  prevail  unless  overcome  by  evidence."70 

Where  the  evidence  showed  that  the  deceased  workman  iiad  for 
21  years  been  in  perfect  physical  condition,  it  is  the  reasonable 
presumption  that  his  sudden  death  while  at  work  was  due  to  ex- 
ternal efficient  agency.80 

Where  an  elevator  operator  was  found  dead  in  the  bottom  of  the 
shaft,  and  the  elevator  was  found  stopped  between  floors,  the  court 
held  that,  in  view  of  the  presumption  against  suicide  and  in  favor  of 
accident,  the  evidence  was  sufficient  to  sustain  the  award.81 

Where  a  sailor,  recovering  from  a  drinking  bout,  disappeared 
from  a  deck  having  a  railing  about  it  S1/^  feet  high,  the  court  held 
that  in  spite  of  the  presumption  against  suicide,  it  was  unable 
under  the  circumstances  to  infer  that  the  death  ot  the  deceased 
was  due  to  an  accident.  82 

Where  an  employee  was  killed  when  he  entered  a  transformer 
room  in  violation  of  rules,  the  court  held  that  the  burden  was  on 
the  administrator  to  prove  that  the  accident  arose  out  of  and 
in  the  course  of  the  employment.83 

The  same  rule*  was  followed  where  a  hotel  porter,  who  wtts 
supposed  to  be  off  duty,  was  found  dead  in  an  elevator.84 

79.  Hollenbach  Co.    v.   Holletabach,    181    Ky.  262,  204  S.   W.    152, -2 
W.  C.  L.  J.  492,  16  N.  C.  C.  A.  879. 

80.  Bloomington   etc.,  R.   Co.  v.   Industrial  Board,  276  III  454,  114  N. 
E.  939. 

81.  Wlshcaless   v.    Hammond    Standish  &  Co.,    201  Mich,    192,  166  N 
W.  -933,   17  N.   C.  C.  A.  793. 

82.  Rourke   v.  Holt  &  Co.,  W.  C.   &  Ins.  Rep.  7,  51  Ir.  L.  T.  121. 

83.  Northern  111.  L.  &  T.  Co.  v.  Industrial  Board,  279,  111.  565,  117  N. 
E.  95,   15  .N.   C.  C.  A.  159;     Grant,  v.  Fleming  Bros  Co.,  —la.—.  176  N. 
W.  640,   5  W.  C.   L.  J.   688. 

84.  Savoy   Hotel  Co.   v.  Industrial    Board,  279  111.  329,  116   N.  E.    712, 
15  N.  C.  C.  A.  233. 

343 


§  167  WORKMEN'S  COMPENSATION  LAWS. 

Where  death  results  from  injury,  the  dependents  are  entitled 
to  recover  although  death  may  not  have  been  the  natural  or  pro- 
bable consequence  of  the  particular  injury85 

"The  board  could  reasonably  infer  from  the  facts  proved  by 
direct  or  circumstantial  evidence  that  the  employee  fell  from  the 
frost  covered  and  unguarded  trestle  to  the  ground  thirty-six  feet 
below,  and  thereby  sustained  fatal  injuries.  We  cannot  say  that  such 
a  conclusion  is  based  upon  mere  surmise  or  speculation;  it  is  sup- 
ported by  logical  reasoning  from  established  facts."86 

Where  a  workman  was  found  dead  on  a  cement  floor  at  the 
bottom  of  some  stairs,  a  wooden  beam  having  been  placed  about 
4  feet  above  the  stairs  the  same  day,  the  court,  in  affirming  an, 
award  of  compensation,  said :  ' '  Circumstances  shown  may  justify 
inferences  which  bring  liability  within  the  realm  of  probability, 
rather  than  leaving  it  a  matter  of  conjecture  merely."87 

Where  a  night  watchman  was  found  dead  at  the  bottom  of  a  well 
under  a  stairway,  it  held  that  an  award  of  compensation  was 
justified  by  the  evidence.88 

On  August  15,  1916,  the  husband  of  the  petitioner  was  a  farm 
hand,  whose  particular  employment  on  that  day  was  to  make  a 
trip  to  Philadelphia  with  a  truck  wagon  drawn  by  a  team  of  mules. 
He  left  the  farm  between  5  and  6  o'clock  in  the  afternoon,  and  at 
2  o'clock  the  next  morning  was  found  dead,  sitting  on  the  seat  of 
the  truck  with  his  body  crushed  between  the  seat  and  the  over- 
hanging roof  of  a  shed,  under  which  the  mules  were  standing. 
From  the  circumstantial  details  in  evidence,  the  judge  of  the  pleas 
determined  that  the  decedent's  death  was  caused  by  an  accident, 
and  that  such  accident  arose  out  of  and'  in  the  course  of  his 
employment.89 

85.  Dunham  v.  Clare.  66  L..  T.  751.  4  W.  C.  C.  102. 

86.  In  re  Uzzio,  228  Mass.  331,  117  N.  E.  349,  15  N.  C.  C.  A.  235,  1  W. 
C.   L.   J.   80;  Davis    v.   Boston   Elev.  Ry.   222  Mass.   475,   111  N.   E.  174. 
Proof  may  be  by   circumstantial  evidence.    Peoria  Ry.  Terminal  Co.  v. 
Indus.  Bd.  279  111.  352,  116  N.  E.  661,15  N.  C..    C.   A.  632. 

•  87.     DeMann  v.  Hydraulic  Engineering  Co.,  192  Mich.  594.  159  N.  W. 
380,  15  N.  C.  C.  A.  236. 

88.  Fogarty  v.  National  Biscuit  Co.,  221  N.  Y.  20,  116  N.  E.  346. 

89.  Dixon  v.  Andrews,  92  N.  J.  L.  512,  103  Atl.  410,  2  W.  C.  L.  J.  105. 

344 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    167 

Where  a  workman  was  found  dead  beside  his  work  on  a  low 
platform,  from  which  he  had  fallen,  the  autopsy  showing  mitral 
regurgitation,  the  court,  in  denying  compensation  said:  "It  can- 
not be  assumed  that  the  man  made  a  misstep  and  then  again 
assumed  that  such  misstep  caused  fright,  and  then  again  assumed 
that  the  fright  caused  the  heart  to  stop.  This  would  not 
only  be  basing  an  assumption  upon  an  assumption,  but  would  be 
taking  one  into  the  realms  of  conjecture."90 

Evidence  that  an  employee,  in  previous  good  health,  dropped 
dead  at  the  moment  of  contact  with  an  electric  wire  or  socket 
while  he  was  working  on  a  wet  cement  floor,  sustains  a  finding 
that  he  died  an  accidental,  and  not  a  natural  death.91 

"Where  a  workman,  who  previously  had  been  in  good  health, 
suffered  a  slight  injury  to  the  eye,  which  gradually  became  worse 
until  he  lost  the  sight  of  the  eye,  and  then  gradually  grew  worse, 
exhibited  neurotic  symptoms  and  died  six  months  after  the  acci- 
dent, it  was  held  that  there  was  evidence  to  support  the  finding 
that  the  accident  was  the  proximate  cause  of  the  death.92 

If  death  ensues  it  is  immaterial  whether  that  was  the  reasonable 
and  likely  consequences  of  the  injury  or  not;  the  only  question 
is  whether  in  fact  death  resulted  from  the  injury.93 

The  Workmen's  Compensation  Act  does  not  required  demon- 
stration as  to  the  cause  of  death,  but  only  that  degree  of  proof 
which  produces  conviction  in  an  unprejudiced  mind.94 

"The  dependents  were  not  required  to  present  such  proof  as 
would  entirely  exclude  the  possibility  that  the  decedent's  death 
was  due  in  part  to  a  diseased  condition  of  the  heart."96 

90.  Guthrie  v.  Detroit  Shipbuilding  Co..  200  Mich.  385,  167  N.  W.  37, 
1  W.  C.  L.  J.  1035. 

91.  State  v.  District  Court,  134  Minn.  324.  159  N.  W.  755. 

92.  Johnston  v.  Southern  Cal.   Box  Factory,  1  Cal.  Ind.  Com.  Part  2, 
577. 

93.  In  re  St>onatske.  220  Mass.  526;  108  N.  E.  466,  8  N.  C.  C.  A.  1025. 

94.  ©hell  Co.   v.   Industrial   Ace.  Comm.   36   Cal.   App.  463,  172   Pac. 
611,  2  W.  C.  L.  J.  34;  Western  Grain  etc.  Products  Co.  v.  Plllsbury,  173 
Gal.  135.  159  Pac.  423. 

95.  Bucyrus  v.  Townsend  64    Ind.  App.  — ,  117  N.  E.  565,  1  W.  C.  L. 
J.  166. 

345 


§  170  WORKMEN'S  COMPENSATION  LAWS. 

§  168.  Delirius. — Where  an  injured  workman,  while  delirious 
as  a  result  of  injuries  received,  did  things  contrary  to  the  doctor's 
orders,  got  out  of  bed  and  subsequently  died,  possibly  from  the 
effect  of  these  acts,  it  was  held  that  the  rights  of  dependents  to 
death  benefits  was  not  thereby  affected.96 

§  169.  Delirium  Tremens. — Where  a  condition  of  alcoholism 
or  tremens  is  aggravated  through  an  accidental  injury  causing 
death,  the  death  is  held  to  be  due  to  the  accident.97 

Where  an  employee  suffered  a  serious  physical  injury,  and 
while  in  the  hospital  developed  delirium  tremens,  and  the  physicians 
testified;  that  the  injury  was  sufficient  to  be  the  producing  cause 
of  the  delirium  tremens  in  view  of  the  employee's  habits,  compen- 
sation was  awarded.98 

Where  it  appeared  that  delirium  tremens  would  not  have  develop- 
ed had  it  not  been  for  the  injury  and  the  shock  following  it,  the 
court  said,  "The  fact  that  his  system  had  been  so  weakened  by 
his  intemperate  habit  that  it  was  unable  to  withstand  the  effects 
of  the  injury  does  not  thereby  shift  the  proximate  cause  of 
death  from  his  injury  to  his  intemperate  habit."99 

§  170.  Dementia  Praecox. — Where  an  employee  sustained  a 
fracture  of  the  right  tibia,  and  while  still  disabled  was  committed 
to  a  hospital  for  the  insane,  the  commission  found  after  extended 
testimony  from  alienists  that  dementia  praecox  is  a  type  of  in- 
sanity into  which  trauma  cannot  enter  either  as  a  "direct  cause 

96.  Brogi  v.  Hammond  Lumber  Co.,  1  Cal.  Ind.  Ace.  Comim.,  (Part  11) 
137. 

97.  Sullivan  v.  Industrial  Engineering  Co.,  173  App.  Div.  65,  158  N.  Y. 
S.  970;  Carroll  v.  Knickerbocker  Ice  Co.,  169  App.  Div.  450,  155  N.  Y.  S. 
1;  Winters  v.  New  York  Herald  Co.,  17H  App.  Div.  960,,  155  N.  Y.  S.  149; 
Dunn  v.  West  End  Brewing  Co.  5  N.  Y.  St.  Dep.  Rep.  380.    Affirmed  later 
in  the  appellate  Div;  In  re  James  Kelley,  3rd  A.  ft.  U.  S.  C.  C.  122. 

98.  Minnis  v.Young  9  N.  Y.  St.  Dep.  Rep.  314. 

99.  Ramlow  v.  Moon  Lake  Ice  Co.,  192  Mich.  505,  158  N.  W.  1027,  L. 
R.  A.  1916    F.  955,    14    N.  C.  C.  A.  295. 

346 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    172 

or  as  a  precipitant.    It  was  held  that  the  applicant  was  entitled  to 
compensation  solely  for  the  disability  incident  to  the  fracture.1 

§  171.  Dermatitis. — Where  a  chambermaid  contracted  der- 
matitis, an  infection  of  the  hands,  it  was  held  that  the  resulting 
disability  was  not  compensnble,  because  there  was  no  proof  of 
its  accidental  origin  or  of  an  opportunity  for  the  infection  to  en- 
ter by  accident.8 

Compensation  was  awarded  in  a  case  of  "Dermatitis  venena- 
ta."  The  commission  said,  "we  are  inclined  to  the  opinion  that  the 
infection  in  this  case  is  to  be  attributed  to  walking  back  and  forth 
all  day  in  this  wood  -dust  to  the  depth  of  an  inch,  which  irritated 
the  lower  limbs  and  was  communicated  to  the  hands  and  arms, 
perhaps  from  scratching  the  lower  limbs."3  This  was  therefore 
held  to  be  a  personal  injury  and  consistent  with  the  Act  as  amend- 
ed by  the  elimination  of  the  word  "accident,"  prior  to  the  oc- 
currence of  disability  in  this  case.  Though  the  commissioners  ad- 
mitted the  case  was  not  free  from  difficulties. 

A  claim  for  disability  resulting  from  dermatitis  alleged  to  have 
been  caused  by  the  handling  of  heavily  inked  papers  was  denied 
because  of  lack  of  medical  evidence  to  sustain  the  claim.* 

A  claim  was  allowed  for  disability  resulting  from  dermatitis  due 
to  irritation  caused  by  machine  oils.5 

§  172.  Diabetes. — All  the  evidence  tended  to  prove  that  be- 
fore the  accidental  injury  the  employee  was  a  well  man,  a  few 
days  after  the  injury  his  urine  was  examined  and  there  were  in- 
dications of  the  presence  of  diabetes.  The  court  in  affirming  an 
award  held  that  the  conclusion  that  the  diabetic  condition  re- 
sulted from  the  injury  was  not  based  on  mere  conjecture,  there  be- 

1.  Oliver  v.  Union  Iron  Works,  5  Cal.  I    A.  C.D.    ^93;   baderman  v. 
Standard   Accident  Insurance.  Co.,  2  Mass.   I.  A.  Bd.  551. 

2.  McDonald   v.  Dunn,    2  Cal.   I.    A.  C.   Dec.  91;    Petschett  v.    Praia, 
8  B.  W.  C.  C.  44. 

3.  Reeves  v.  The  Diamond  Match  Co.  et  al-,  5  Cal.  I.  A.  C.  D.  236. 

4.  In  re  Theodore  H.  Schlessman.  2nd.  A.  R.  IT.  S..C.  C.  154. 
5      In  re  S.    CR.  Moran,  3rd.  A.  R.  U..S.  C.  C.  155. 

347 


§  173  WORKMEN'S  COMPENSATION  LAWS. 

ing  evidence  that  a  well  and  healthy  man  when  injured  might 
develop  the  disease.6 

In  a  suit  at  common  law  for  damages,  the  court  held  evidence  of 
the  existence  of  diabetes  resulting  from  the  accident  admissible.7 

§  173.  Disease  Following  Injury. — Disease  must  be  traceable 
to  an  accident  before  it  is  compensable.8 

"Where  an  employee  suffered  a  rupture,  and  after  an  operation 
left  the  hospital  two  weeks  after  the  injury,  which  was  on  April 
14th,  in  a  thin  and  emaciated  condition,  and  on  September  22nd 
entered  an  infirmary,  and  died  of  pulmonary  tuberculosis  on 
December  12th,  it  was  held  that  the  claimant  had  not  sustained 
the  burden  of  showing  that  there  was  any  connection  between  the 
rupture  and  the  death.9 

Under  a  policy  covering  death  as  a  result  of  injuries  caused 
solely  by  external,  violent  and  accidental  means,  the  insurer  was 
held  liable  where  death  was  caused  by  a  disease  which  was  itself 
caused  by  external,  violent  and  accidental  bodily  injuries.10 

Where  an  accident  to  an  employee's  eye,  which  at  first  appeared 
not  serious,  resulted,  after  a  week  or  more  in  a  diseased  condition 
of  the  eye  which  destroyed  the  sight,  the  injury  occurred,  within 
the  meaning  of  the  statute,  when  the  diseased  condition  culminat- 
ed.11 

Decedent,  working  in  a  blacksmith  shop,  pinched  his  finger  and 
an  infection  resulted.  Four  operations  were  performed,  the  last 
apparently  successful.  Four  days  later  he  was  suffering  from  acute 
inflammatory  rheumatism  (and  died  in  ten  days.  The  physician 

6.  Balzer  v.  Saginaw  Beef  Co.,  199  Mich.  374,  165  N.  W.  785,  1  W.  C. 
L.  J,  399L 

7.  .Woody  v.  Louisville  R.  Co.,    153  Ky.  1,  154  S.  W.  384. 

8j.  Blair  v.  Omaha  Ice  and  Cold  Storage  Co.,  —  Neb.  — ,  165  N.  W. 
893,  1  W.  C.  L.  J.  424;  In  re  Patrick  Coughig^  2nd  A.  R.  U.  S.  C.  C-  128. 

9.  Kemp  v.  Clyde  Shipping  Co.,  Ltd.,  119  L.  T.  R.  131,17  N.  C.  C.  A. 
876. 

10.  Armstrong  v.  West  Coast  Life  Ins.  Co.,  41  Utah  112,  124  Pac-  518. 
Squire  Dingee  Co.  v.  Indue.  Bd.,  —  111.  — ,  117  N.  E.  1031,  1  W.  C.  L.  J. 
331. 

11.  Johansen  v.  Union  Stockyards  Co.,   99  Neb.  328,   156   N.   W.  511. 
348 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    173 

who  treated  him  during  the  ten  days  was  of  the  opinion  that  the 
rheumatism  was  caused  from  a  secondary  infection  as  a  result 
of  the  local  one.  The  other  physicians  claimed  the  fourth  operation 
entirely  eradicated  the  infection.  The  court,  in  affirming  the 
award,  held  that  the  board  was  the  judge  of  the  credibility  of  the 
witness  both  medical  and  lay,  and  its  finding  in  the  absence  of 
fraud  was  conclusive,  if  there  was  any  evidence  to  support  it.12 

Deceased,  while  employed  in  a  bowling  alley,  suffered  a  broken 
thigh  bone,  from  a  flying  pin.  He  was  discharged  from  the  hospi- 
tal with  the  bone  not  entirely  healed,  and  later  reentered  the 
hospital  and  died.  Deceased  had  a  cut  on  his  forehead  which  an 
attendant  stated  he  had  suffered  by  falling  when  he  tried  to  get 
up.  Reversing  the  judgment,  the  court  held  that  there  was  no 
evidence  from  which  a  fair  inference  could  be  drawn  that  de- 
ceased's death  resulted  from  the  injury  sustained  in  the  bowling 
alley.18 

Deceased  slipped  and  struck  his  head.  He  was  dizzy  for  a  few 
minutes,  but  continued  to  work.  He  complained  of  pains  in  his 
head,  but  worked  all  afternoon.  He  did  not  work  the  following 
.day  on  account  of  the  weather,  but  did  work  the  next  day.  He 
went  home  weak  and  dizzy,  and  never  recovered.  A  lump  came 
out  at  the  end  of  his  spine.  The  physician  who  treated  him  said 
that  he  died  of  pneumonia,  the  others  said  he  did  not.  Affirming 
the  award  the  court  said  that  it  was  unable  "to  say  there  was  no 
testimony  supporting  the  finding  of  fact  of  the  board  that  the 
death  was  due  to  the  injuries  received  while  in  the  employ  of 
the  defendant."14 

Deceased  fell  and  struck  his  head,  and  was  unconscious  for  a 
few  minutes,  and  three  days  afterwards  resumed  his  duties  and 
worked  for  a  week,  and  was  apparently  normal.  About  three 
weeks  thereafter  he  entered  a  hospital,  and  in  two  weeks  died. 

• 

12.  Perdew  v.  Nutter  Cedar  Co.,  201  Mich.,  520,  167  N.  W.  868,  17  N. 
C.  C.  A.  884,    (1918). 

13.  Perry  v.  Woodward  Bowling  Alley  Co.,  196  Mich.  742,  163  N.  W. 
52,  17  N.  C.  C.  A.  885. 

14.  Tinman  v.    Roardman  River  Elec.  Light  &  Power  Co..  200  Mich. 
206,   166  N.  W    860    (1918). 

349 


§  173  WORKMEN'S  COMPENSATION  LAWS. 

It  was  contended  that  the  evidence  was  not  sufficient  to  sustain 
the  finding  that  death  resulted  from  the  injury.  The  doctor 
who  made  an  autopsy  testified  that  the  death;  resulted  from  a 
hemorrhage  of  the  brain  of  traumatic  origin,  which  the  court 
on  appeal  held  sufficient  to  justify  the  finding.15 

Latent  disease,  accelerated  by  an  accident  to  the  extent  that 
it  produces  disability  is  compensable.16 

"Where  a  workman  receives  a  personal  injury  from  an  aojcident 
arising  out  of  and  in  the  course  of  his  employment,  and  disease 
ensues  which  incapacitates  him  for  work,  the  incapacity  may  be 
the  result  of  the  injury,  within  the  meaning  of  the  (English)  Work- 
men's Compensation  Act,  even  though  it  is  not  the  natural  re- 
sult of  the  injury.  The  question  to  be  determined  on  a  claim  for 
compensation  is  whether  the  incapacity  is  in  fact  the  result  of 
the  injury.  Ystradowen  Colliery  Co.  v.  Griffiths,  (1909)  2  K. 

B.  533.    In  a  case  where  a  petitioner's  arm  was  broken  while  he 
was  in,  defendant's  employ,   and  the   fracture  properly  united, 
but  there  developed  an  abscess  upon  the  fleshy  part  of  the  thumb, 
which  resulted  in  ankylosis,  making  the  thumb  useless,  the  Su- 
preme Court  held  that  the  ankylosis  of  the  thumb  was  an  injury 
arising  by  accident  out  of  and  in  the  course  of  the  employment. 
Newcomb  v.  Albertson,  85  N.  J.  Law,  435,  98  Atl.   928.     And 
Mr.  Justice  Swayze,  in  writing  the  opinion  in  Liondale  Bleach 
Works  v.  Riker,  85  N.  J.  Law,  426,  at  Page  429,  89  Atl.  929, 
observed  that  the  question  of  disease  following  an  accident  was 
considered  in  Newcomb  v.  Albertson,  Supra.     The  decision  there, 
rested  on  certain  English  cases,  is  to  the  effect  that  an  injury 
which  follows  an  accident,  and  which  but  for  the  accident  would 
not  have  happened,  justifies  the  finding  that  the  injury  in  fact 
results  from  the  accident."17 

15.  State  ex  rel.  London  &  L.  Indemnity  Co.  v.  District  Court  Henne- 
pin  Co.,  139  Minn.  409,  166  N.  W.  722,  (1018) . 

16.  Indianapolis  Abattoir  Co.  v.  Coleman,  —  Ind.  App. — ,  117  N.  E. 
502  I  W.  C..L.  J.    41,. 

17.  Lundy  v.  George  Brown  &  Co.,  —  N.  J.  App.  —  108  Atl.  252,  5  W . 

C.  L.  J.  294;   State  ex  rel.  Anseth  v.  District  Ct.  of  Koochiching  County, 
134  Minn.  16,  158  N.  W.  713;   Foley  v.  Home  Rubber  Co.,  89  N.  J.  Law, 
474,  99  Atl.  624,  Affirmed  91  N.  J.  Law,  323,  102  Atl.  1053. 

350 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    173 

Where  an  injury  so  re<luc«-<l  ;m  employee's  vitality  as  to  leave 
him  susceptible  to  an  attack  of  disease  which  caused  his  death, 
the  death  can  he  said  to  be  due  to  the  original  accident.18 

Disease  contracted  in  the  course  of  the  employment  and  re- 
sulting in  pain  does  not  amount  to  an  accidental  injury  and  is 
not  compensable.18 

Locomoter  ataxia  following  an  injury,  being  a  form  of  syphillis, 
was  held  not  to  be  due  to  the  injury  but  rather  to  the  syphilitic 
condition  and  not  compensable  under  the  Federal  Act.-" 

Death  from  a  disease  contracted  while  in  a  weakened  condition, 
caused  by  bad  air  and  not  traceable  to  a  definite  time,  place  and 
cause,  is  not  a  compensable  accidental  injury.21 

Where  ;in  attack  of  caisson  disease  came  on  suddenly,  due  to 
the  negligence  of  a  coemployee  in  decompressing  air  too  fast,  and 
resulted  in  the  death  of  the  employee,  death  was  due  to  an  acci- 
dental injury  arising  out  of  the  employment  and  not  to  some 
inherent  physical  defect.22 

Disease  contracted  while  caring  for  patients  in  a  .hospital  is 
compensable  under  the  Federal  Act.23 

A  claim  for  disability  from  chorea  due  to  overwork  was  dis- 
allowed, the  medical  testimony  being  that  this  disease  was  not 
caused  by  overwork.24 

Where  death  results  from  disease  and  not  from  the  injury 
eompens.ition  will  be  denied.25 

18.  Lanner  v.    Aluminum    Castings  Co.,  —Mich.—  (1920).  178  N.  \V. 
69,  6  W.  C.  L.  J.  337. 

19.  Pimentol's  Case,  —Mass.—  (1920),  127  N.  E.  424,  6  W.  C.  L.  J.  185; 
In  re  Henry  Mayer,  3rd.  A.  R.  U.  S.  C.  C.  163. 

20.  In  re   Joseph  Bradley,   3rd.   A.  R.  U.  S.  C.   C.  127;     In  re  Elmer 
D.  Light,  3rd.  A.  R.  U,.  S.  C.  C.  161. 

21.  Prouse  v.  Indus.  Comni.,  —  Colo.  — ,  194  Pac.  625. 

22.  Williams  v.   Missouri  Bridge  and  Iron  Co.,  —Mich.—   (1920).  18tt 
N.  W.  357. 

23.  In  re  Mary  C.  O'Hanlon,  2nd   A.  R.  U.  S.  C.  C.  195u 

24.  In  re  Russell  A.  Cummings,  2nd   A.  R.  U.  S.  C.  C.  153. 

25.  In  re   Chas.  E.  Garvin,  2nd    A.  R.  U.  S.  C.  C.  178;     In  re  Wm. 
A.   Kell,  2nd.    A.  R.  U.  S.  C.  C".  179;    In   re    Wm    J.  Lehr.   2nd.    A.    R. 
U.  S.  C.  C.  183. 

351 


§  175  WORKMEN'S  COMPENSATION  LAWS. 

§  174.  Dislocation. — A  dislocation  of  the  semilunar  cartilage 
of  the  knee,  caused  by  quickly  arising  from  a  stooping  position, 
required  by  the  nature  of  the  employment,  was  held  to  be  an 
accidental  injury.26 

Where  an  employee  slipped  and  fell,  dislocating  the  clavicle,  and 
was  operated  upon  three  days  later,  and  died  of  hypostatic  pneu- 
monia, caused  by  the  weakening  of  his  system  by  the  operation, 
it  was, held  that  his  widow  was  entitled  to  compensation.27 

Where  an  employee,  through  accidental  injury,  suffered  a  dis- 
location of  the  coecum,  general  adhesions  in  the  abdomen,  and 
constipation,  resulting  in  traumatic  peritonitis,  which  condition 
necessitated  the  removal  of  the  appendix,  all  this  was  held  to  be 
caused  by  the  accident,  and  the  resulting  disability  compensable.28 

Where  an  elevator  operator,  in  raising  heavy  gates  above  his 
head,  sustained  a  dislocation  of  the  collar  bone,  it  was  held  that 
the  resulting  disability  was  compensable.29 

§  175.  Dizziness. — There  was  testimony  to  the  effect  that 
nails  protruded  from  the  floor  where  applicant  worked,  and  on 
two  occasions  prior  to  this,  applicant  testified,  he  had  tripped  on 
them,  but  he  also  stated  that  he  could  not  account  for  the  fall 
unless  the  nails  caused  it.  Affirming  an  award  of  the  board  the 
court  said:  "While  plaintiff  testifies  that  at  times  he  has  been 
dizzy  and  weak,  he  also  testifies  that  it  was  nothing  to  speak  of, 
but  slight,  and  never  sufficient  to  cause  him  to  lose  his  balance  and 
fall.  His  fellow  workmen  and  superiors  in  the  plant  who  saw  him 
daily  never  noticed  any  appearance  of  dizziness  or  fainting,  and 
never  saw  him  fall  before.  The  fact  that  he  did  not  recall  just 
how  the  accident  happened  is  in  no  way  extraordinary,  when  we 
contemplate  that  in  the  fall  he  struck  his  head  with  sufficient  force 
to  inflict  a  gash  in  his  scalp.  He  was  over  70  years  of  age,  not 
as  nimble  as  in  his -younger  years,  and  had  had  trouble  with  his 
limbs  and  feet  a  short  time  before.  We  are  not  persuaded  that 

26.  Giampolini-Lombardi  Co.  v.  Raggio,  2  Cal.  I.  A.  C.  936. 

27.  Cantwell  v.  Traveler's  Insur.  Co.,  2  Mass,  Wk.  Comp.   Cases  246. 

28.  Gregg  v.  Frankfort  Gen.   Ins.   Co,.,  2  Mass.  W.  C.  C.  581 

29.  Bonin  v.  California   Hawaiian  Sugar  Refinery,  3  Cal.  I.  A.  C.  334. 
352 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    176 

AVC  should  say,  as  a  matter  of  law,  that  the  cause  of  the  accident 
under  the  evidence  in  the  case  is  so  conjectural  as  to  require  us  to 
set  aside  the  finding  and  award  of  the  board."30 

Where  a  workman  was  working  on  a  pile  of  bricks,  fifteen  feet 
above  the  ground,  and  was  seized  "with  an  attack  of  vertigo,  or 
with  some  similar  disorder  which  cauesd  him  to  fall  to  the  ground, ' ' 
the  court  in  affirming  an  award  of  compensation  held  that  the 
fainting  and  fall  were  caused  by  the  conditions  under  which  the 
man  was  working.81 

AVhere  there  was  evidence  to  the  effect  that  a  back  driver's 
team  ran  into  the  curbing  and  pitched  the  driver  out  on  the  side- 
\\;ilk,  the  court  held  that  his  fall  was  due  to  something  more  than 
mere  dizziness  or  unconsciousness  from  which  he  suffered  just 
before  the  accident.32 

Where  a  workman  received  an  accidental  injury,  became  dizzy 
and  fell  down  stairs,  it  was  held  he  was  entitled  to  compensation 
during  the  continuance  of  disability  from  both  injuries.33 

Where  an  employee,  because  of  dizziness,  fell  and  sustained  a 
concussion  of  the  brain,  compensation  was  denied  because  there 
was  no  evidence  to  connect  the  cause  of  the  fall  to  a  risk  incident- 
al to  or  arising  out  of  the  work  being  performed.34 

§  376.  Dog  Bite. — "The  presence  of  the  dog,  with  defendant's 
implied  knowledge  and  consent,  was  one  of  the  physical  condi- 
tions of  the  plant  under  which  the  defendant  required  the  plain- 
tiff to  perform  his  duties.  The  mere  fact  that  the  direct  cause 
of  the  injury  was  animate  rather  than  inanimate  does  not  alter 
the  result."  It  was  held  to  be  a  compensable  accident." 

30.  Wilson  v.   Phoenix   Furniture  Co.,  210  Mich.   531,   167  N.  W.   839, 
17  N.   C.  C.  A.  786. 

31.  Santacrose  v.  Sag  Harbor  Brick  Works,  182  N.  Y.  App.  Dlv.  442, 
169  N.  Y.  Supp.  695,  17  N.  C.  C.  A.  787. 

32.  Carroll  v.  What  Cheer  9table»  Co.,  38  R.  I.  421,  96  Atl.  208,  12  N. 
C.  C.  A.  174. 

33.  Murray  v.  Massachusetts  Employe's  Ins.  Assn.  1  Mass.  I.  A.  Bd. 
436. 

34.  Van  Winkle  v.  Johnson  Co.,  2  Cal.  I.  A.  C.  D.  189. 

35.  Barone  v.  Brambach  Piano  Co.,  101  Misc.  Rep.  669,  167  N.  Y.   8. 

353 

w.  a— 23 


§  178  WORKMEN'S  COMPENSATION  LAWS. 

§  177.  Drinking  Acid  or  Poison  by  Mistake. — Where  an  em- 
ployee was  killed  as  a  result  of  drinking  acid  by  mistake,  from 
a  bottle  which  he  found  where  he  was  accustomed  to  keep  a  bottle 
of  drinking  water  of  like  appearance,  it  was  held  to  be  a  compen- 
sable  accident.36 

Where  an  employee  drank  beer  furnished  by  the  employer,  but 
poisoned  by  an  employee,  the  resulting  disability  was  held  not 
compensable.37 

§  178.  Drowning1. — Where  a  traveling  salesman  found  it  nec- 
essary, in  order  to  reach  his  destination,  to  cross  a  river  in  a  row 
boat,  and  was  drowned  in  crossing,  it  was  held  to  be  a  compensable 
accident.38 

An  employee  in  charge  of  a  boat  permitted  it  to  slip  away  from 
the  dock,  and  in  attempting  to  get  into  it  from  the  dock,  fe-11 
into  the  water  and  was  drowned,  after  starting  to  swim  upon 
his  back  to  the  stern  of  the  boat.  •  This  was  held  to  be  a  compen- 
sable accident.39 

Where  it  was  claimed  that  the  employee  jumped  into  the  water 
with  the  intent  to  commit  suicide,  it  was  held  that  the  evidence 
was  sufficient  to  sustain  an  award  for  accidental  death  by  drown- 
ing.40 

Where  an  employee  was  drowned  in  attempting  to  clean  rocks 
which  protected  an  intake  flume,  it  was  held  to  be  an  accident 
within  the  meaning  of  the  compensation  act.41 

933,  1  W.  C.  L.  J.  703;  In  re  Wm.,  Miller,  Vol.  1,  No.  7,  Bui.  Ohio  I.  C., 
p.  46;     In  re  Bailey,  Op.  Sol.  Dept.  of  L.  232. 

36.  In  re  Osterbrink,    229  Mass.  407,  118   N.  E.  657,  1  W.    C.  L.  J.  814; 
Archibald  v^  Ott,  77  W.  Va.  448. 

37.  Koch  v.   Oakland  Brewing  &  Malting  Co.,  1  Cal.  I.  A.   C.  D.  373. 

38.  McCarthy  Bros.  Co.  v.    District   Court  Hennepin,    Co.,  141   Minn. 
61,  169  N.   W.  274,   17  N.   C.  C.   A.  959. 

39.  Boyle  v.  Mahoney  &  Tierney,  92  Conn.  404,  103  AU.  127. 

40.  Western  Fuel    Co.   v.    Industrial  Commission,  159    Wis.  635,    15o 
N.  W.  998. 

41.  Boody  v.   K.  &.   C.  Mfg.  Co.,   77  N.   H.  208,  90   Atl.  859,  L.  R.    A. 
1916   A.    10,    5    N,    C.    C.    A.    840;    Leach  v.  Oakley,  1  K.    B.  523,  4  B. 
W.  C.  C.  91. 

354 


PERSONAL  INJURY  OR   DEATH   BY  ACCIDENT.  §    180 

Where  the  evidence  showed  that  a  sailor  went  on  deck  at  night 
to  get  fresh  air,  and  was  found  next  morning  in  the  water,  dead, 
this  was  held  sufficient  proof  of  accident.42 

§  179.  Dust. — Where  an  employee  was  sawing  timbers,  it  was 
held  that  it  might  be  inferred,  when  he  said  that  he  got  dust  in 
his  eye,  that  he  meant  saw  dust  from  the  sawing  he  was  doing, 
and  it  was  therefore  a  compeiuable  accident/3 

It  has  been  held  that  disability  caused  by  the  inhalation  of  fine 
dust  into  the  lungs  in  the  course  of  employment,  is  an  injury 
under  the  Federal  Act.44 

Where  the  blowing  of  cement  dust  into  the  eyes  of  a  workman 
continued  the  disability  from  the  disea.se  of  trachoma,  it  was  held 
a  compensable  accident.45 

Where  a  stone  grinder  was  injured  by  inhaling  small  particles 
of  stone  and  dust,  by  reason  of  which  he  contracted  fibroid  tuber- 
culosis, it  was  held  that  he  was  entitled  to  compensation  under 
the  Massachusetts  Act.46 

Where  it  was  determined  that  the  loss  of  sight  of  the  eye  was 
due  to  natural  causes,  rather  than  irritation  from  emery  dust 
accidentally  getting  into  the  eye,  compensation  was  denied.47 

Compensation  was  allowed  for  disability  due  to  iron  rust  acci- 
dentally entering  a  workman's  eye.48 

§  180.  Dysentery — Dysentery  caused  by  drinking  impure 
vrater  furnished  by  the  employer  for  drinking  purposes  is  com- 
pensable injury  under  the  Federal  Act.49 

42.  Marshall  v.  Owners- of  Ship,   "Wild    Rose,"   3    B.  W.  C.  C.  514 
H.  L. 

43.  Dickinson  v.  Industrial  Board  of  111.,  280  111.  342   117  N.  E.  43g,  17 
N.  C.  C.  A.  154. 

44.  In  re  Edward  Edmonds,  Op.  Sol.  D.  L.  (1915),  254;     In  re  Carey 
E.  Stone,  3rd.  A.  R.  U.  S.  C.  C.    114. 

45.  Beauchamp  v.   Chansler-Confleld   Midway   Oil  Co.,   2   Cal.  I.    A.  C. 
Dec.  485. 

46.  Kalanquin    v.  Traveler's  Insur.  Co.,  2  Mass.    Wk.  C.  C.  748. 

47.  Lohrke  v.  Benicia  Iron  Works,  1  Cal.  I.  A.  C.  D.  261. 

48.  Keatly  v.  Shields  &   Son.  1  Cal.  I.  A.  C.  D.  191. 

49.  In  re  Fred  J.  Shurz,  2nd  A.  R.  U.  9.  C.  C.  100. 

355 


§  182  WORKMEN'S  COMPENSATION  LAWS. 

§  181.  Eczema. — Where  eczema  was  caused  by  dipping  rings 
into  a  basin  of  carbon  bisulphide,  it  was  held  not  to  be  an  accident- 
al injury.50 

AVhere  an  employee  after  ten  days  service  in  a  bleachery,  de- 
veloped eczema,  it  was  held  not  to  be  an  accidental  injury.51 

Where  an  employee  in  bad  physical  condition  sprained  his  ankle, 
which  was  followed  by  eczema  and  various  other  troubles,  it  was 
held  that  the  employer  takes  the  employee  as  he  finds  him,  and 
all  disability  will  be  considered  due  to  the  accident.52 

§  182.  Embolism. — In  the  opinion  of  the  attending  physician 
a  thrombus  or  an  embolism  may  haVe  caused  the  death  of!  a 
laborer,  who  died  suddenly  in  bed,  five  or  ?dx  months  after  an 
accident  that  had  seriously  injlired  hr*  bead  and  body.  The 
Appellate  Division  affirmed  an  award  to  his  family,  unanimously 
and  without  opinion. G3 

An  employee  fell  from  a  ladder,  sustaining  a;  fracture  of  the 
pelvic  bone,  was  taken  ta  a  hospital,  was  making  satisfactory  pro- 
gress, but  died  suddenly  at  the  end  of  two  weeks.  The  court,  in 
affirming  an  award  of  the  Commission,  said :  ' '  The  theory  that  an 
embolus  arising  from  the  injury*  had  caused  the  death  was  '  guess 
work'  only  in  the  sense  that  there  was  no  direct  evidence  of  the 
existence  of  such  embolus.  But  in  Dr.  Ophuls'  view,  other  con- 
ceivable causes  were  shown,  and  the  one  which  he  advanced  re- 
mained as  the  most  probable1  one.  This  was  a  sufficient  basis  for 
the  action  of  the  Commission. ' ' 5* 

Where  there  was  conflict  in  the  testimony  as  to   whether   the 

50.  Evans  v.  Dodd,  5  B.  W.  C.  C.  3>05. 

51.  Liondale  Bleach,  Dye  &  Paint  Wks.  v.  Riker,  85  N.  J.  L.  426,  89 
All.  929. 

52.  Rouda  &  Spivock  v.  Heenan,  3  Cal.  I.  A.  C.  D.  36. 

53.  Judice  v.  Degnon  Contracting  Co.,  181  App.  Div.  909,  167  N.  Y.  S. 
1107;     Casey  v.  Borden's  Condensed  Milk  Co.,  182  App.  Div.  907,  168  N. 
Y.  S.  1104;    In  re  Benjamin  H.  Flucht,  2nd  A.  R.  U.  S.  C.  C.  103. 

54.  Santa  v.  Industrial  Ace.  Cbmm.,  175  Cal.  235,   165  Pac.  689,  15  N. 
C.    C.   A.  636. 

356 


PERSONAL  INJURY  OR  DEATH'  BY  ACCIDENT.  §    183 

disability  was  due  to  pre-existing  ailments  or  to  embolism,  the 
Commission's  finding  on  the  latter  theory  is  conclusive.85 

Where  one  employee  imagined  he  saw  another  employee  about 
to  be  killed,  and  immediately  sustained  a  stroke  of  paralysis, 
which  resulted  in  death,  the  medical  testimony  being  to  the  ef- 
fect that  the  paralysis  might  have  been  caused  by  severe  men- 
tal shock,  or  by  cerebral  embolism  due  to  a  former  diseased  con- 
dition of  the  heart,  it  was  held  that  the  evidence  wart  insufficient 
to  prove  accidental  death  arising  out  of  the  employment.  M 

Where  an  employee  suffered  a  hernia  by  accident  the  Com- 
mission said:  "Passing  now  from  the  question  of  hernia  to  the 
immediate  cause  of  the  man's  death,  is  there  any  connection 
between  the  ordinarily  simple  and  safe  operation  for  the  radical 
cure  of  hernia  and  the  pulmonary  embolism  which  I  find  \vas 
the  direct  cause  of  the  death  of  Mr.  Maloney.  Dr.  Coley  in  the 
article  already  cited  in  Keen's  Surgery  (1914  Ed.,  Vol.  4,  page 
38),  mentions  the  fact  that  following  this  operation  a  certain 
number  of  deaths  have  been  reported  as  due  to  embolism.  Dr. 
Frazier  in  Vol.  1,  Keen's  Surgery,  page  446,  says  that  pulmo- 
nary embolism,  while  comparatively  rare,  occurs  with  some  fre- 
quency as  the  sequel  of  abdominal  operations."  It  was  so 
found,  and  compensation  awarded.67 

Where  an  employ ee'si  death  was  caused  by  an  emboliLs,  result- 
ing from  a  septio  condition  following  an  amputation  of  a  leg  crush- 
ed by  an  accident,  it  was  held  that  the1  death,  was  due  to  the  ac- 
cident. " 

§  183.  Epilepsy. — Where  a  laborer  was  working  on  a  scaffold 
5  feet  wide,  39  feet  from  the  ground,  guarded  by  a  rope  3  feet 
high  around  its  edge,  suffered  an  epileptic  fit  and  rolled  off  of  the 
scaffold,  the  court  said:  "There  was  nothing  in  the  nature  of  the 

65.  Fooler  v.  Risedorph  Bottling  Co.,  175  N.  Y.  App.  Div.  224,  161  N. 
Y.  Supp.  535;  In  re  Frederick  E.  Walker,  2nd.  A.R.  U.8.C.C.  155. 

56.  Keck  v.  Morehouse,  2  Cal.  I.  A.  C.  D.  264. 

57.  Maloney  v.    Waterbury   Farrel   Foundry  &  Machine  Co.,  1  Conn. 
C.  D.  220. 

58.  'Akina  v.  Pacific  Light  &  Power  Corporation,  2  Cal.  I.  A.  C.  D.  911. 

357 


§  183  WORKMEN'S  COMPENSATION  LAWS. 

work  (which  the  deceased  was  doing  at  the  time  that  had  any 
tendency  to  bring  on  a  fit  of;  epilepsy.  Neither  the  fit,  nor*  the 
fall,  nor  the  injury^  was  produced  by  the  nature  of  the  work  in 
which  he  was  engaged.  The  injury  was  doubtless  the  greater 
by  reason  of  the  distance  from  the  scaffold  to  the  ground,  but 
this  distance  was  not  due  to  the  nature  of  the  work  itself.  Tha 
question  whether  or  not  sach  an  injury  arises  'out  of  the  em- 
ployment cannot  and  does  not  depend  upon  the  height  from 
which  the  employee  falls  or  the  extent  of  the  injury  he  receives 
as  the  result  of  the  fit."59 

"There  is  no  claim  that  the  scaffold  was,  improperly  construct- 
ed or  in  any  way  unsuitable  for  the  service.  Due  to  no  condi- 
tions arising  out  of  his  employment,  but  solely  to  his  predis- 
position to  epileps(y,  'of  which  his  employer  had  no  notice,  he 
fell  from  the  scaffold,  receiving  an  injury  from  which  death  re- 
sult ed.  The  fall  was  caused  and  caused  only  by  the  epileptic 
fit.  The  fit  was  the  direct  and  only  cause  of,  his  injury.  We 
do  not  think  it  would  be  seriously  contended  that  had  he  fallen 
in  an  epileptic -fit  while  standing  on  the  floor,  and  received  the 
injury  he  did  that  the  injury  arose  out  of  the  employment,  and 
that  the  defendant  was  liable.  The  distance  of  the  fall  might 
contribute  to  the  extent  of  the  injury,  but  it  was  not  a  contribu- 
tory cause  to  the  fall-  When  the  deceased  was  seized,  with  the 
epileptic  fit  he  would  have  fallen,  no  matter  where  he  was,  and 
the  employer  cannot  be  held  responsible  because  that  unfortu- 
nate seizure  occurred  when  the  workman  was  on  a  scaffold,  a 
few  feet  from  the  floor."60 

Where  an  employee  suffered  an  accidental  blow  on  the  head,  and 
subsequently  developed  epilepsy,  it  was  held  that  the  evidence  was 
insufficient  to  prove  that  the  blow  on  the  head  was  so  severe  that 
the  epilepsy  could  be  said  to  be  of  traumatic  origin.61 

•^ 

59.  Brooker   v.   Industrial  Ace.   Commission,    176   Cal.  275,   168   Pac. 
126  (1917),  1  W.  C.  L.  J.  9. 

60.  VanGorder  v.  Packard  Motor  Car    Co.,  195  Mich.  588,  162  N.  W. 
107    (1917),  15  N.  C.  C.  A.  214. 

61.  Larson  v.  Powers,  2  Cal.  I.,  A.  C.  D.  320. 

358 


1'KUSONAL  INJURY   OK   DKVTII    BY   ACCIDENT.  §    184 

Where  epilepsy  followed  after  the  employee  had  suffered  a 
fracture  of  his  skull,  the  resulting  disability  was  held  compensa- 
ble.aa 

"Iii  view  of  the  evidence  in  this  case,  the  Board  is  not  called 
upon  to  speculate  as  to  whether  an  epileptic  fit  was  or  not  the 
moving  cause  of  decedent's  fall  into  the  water.  With  this  view  of 
the  case,  it  is  unnecessary  to  pass  upon  the  issue  which  would 
have  been  presented  if  in  fact  an  epileptic  fit  had  been  the  moving 
cause  of  the  drowning.  Awards  have,  however,  been  upheld  in 
Great  Britain  and  in  other  jurisdictions  where  an  epileptic  fit  was 
the  niovng  cause  and  a  hazard  of  the  employment  intervened.  In 
Wicks  v.  Dowell  &  Co.,  Ltd.  (1905  7,  W.  C.  C.  A.),  where  a  man 
working  on  the  edge  of  an  open  hold  of  a  ship  had  an  epileptic  fit 
and  fell  into  the  hold,  the  court  held  'that  the  accident  arose  out 
of  the  employment. '  This  case  has  been  followed  by  the  Massachu 
setts  Commission  in  Driscoll  v.  Cushman  Express  Co.  An  opposite 
view  has  been  taken  in  some  states.  Van  Gorder  v.  Packard  Motor 
Car  Co.,  162  N.  W.  107 ;  Brooker  v.  Indus  Ace.  'Com.,  168  Pac. 
126.  "°3 

Where  an  employer,  while  at  work,  was  seized  by  an  epileptic 
fit  and  suffered  a  dislocation  of  his  shoulder,  his  claim  for  com- 
pensation was  denied.04  Under  the  Federal  Act  compensation  is 
allowed  in  such  cases.85 

It  has  been  held  by  the  Wisconsin  Commission  that  injuries 
MI  stained  by  fall  due  to  epileptic  fit  are  not  compensable  unless 
there  is  some  peculiar  hazard  connected  with  the  place  of  the 
fall.86 

§  184.  Erysipelas. — Wihere  an  employee  froze  his  nose  in  the 
course  of  his  employment,  causing  a  break  in  the  skin,  and  erysip- 

62.  Butt  v.  Gellyceidrin  Colliery  Co.,  3  B.  W.  C.  C.  344. 

63.  Barnett  v.  Silver,  2nd  Ky.  R.  W.  C.  L.  D.  p.  121. 

64.  Allard  v.  Ingersol  &  Bro.,  1  Conn.  C.  D.  Part  1,  p.  274. 

65.  In  re  Win.    Trenkel.  2nd   A.  R.  U.  8.  C.  C.  249;     In  re  James  J. 
Gorman,  2nd.  A.  R.  U.  S.  C.  C*.  249. 

66.  Kowalski  v.   Trostel  &   Sons,  Fourth   Annual   Report  Wis.    Indus. 
Com.  p.  17. 

359 


§  184  WORKMEN'S  COMPENSATION  LAWS. 

elas  developed  by  means  of  a  germ  entering  the  break,  the  erysip- 
elas was  held  to  be  due  to  an  accident  arising  out  of  the  employ- 
ment.67 

Where  death  results  from  erysipelas,  which  follows  as  a  natural 
though  not  as  a  necessary  consequence  of  an  accidental  wound,  it 
may  be  deemed  the  proximate  result  of  the  wound  and  not  of  tii«3 
disease  within  the  requirements1  of  an  accident  policy  that  death 
must  result  solely  from  accidental  means.68 

Decedent  had  been  working  in  a  loft  of  a  boarding  stable  and 
came  out  to  go  down  stairs.  He  stopped  on  the  way  at  his  apart- 
ment in  the  stable  for  a  plate  of  soup.  As  he  was  going  down  stairs 
he  slipped  and  fell,  striking  his  head  against  a  pillar.  The  wound 
became  infected.  Thereafter  erysipelas  developed,  which,  with 
other  complications,  caused  his  death.  Compensation  was  awarded 
for  the  death.69 

Where  erysipelas  followed  after  an  injury  to  a  workman's  foot 
the  resulting  disability  was  held  compensable.70 

An  ice  wagon  driver  suffered  a  strain  of  his  neck  and  shoulder. 
He  applied  liniment  daily,  from  which  an  abrasion  of  the  skin  re- 
sulted, his  pain  increased  until  he  died  about  two  weeks  thereaf- 
ter in  a  hospital.  The  medical  testimony  was  practically  all  to  the 
effect  "that  erysipelas  could  have  resulted  from  an  abrasion  of 
the  skin  caused  by  the  use  of  liniment,  which  is  a  customary  home 
remedy  in  case  of  strains."  Compensation  was  awarded  for  the 
death.71 

Where  a  workman's  death  occurred  on  September  27th  froia 
erysipelas,  which  first  developed  on  the  15th,  it  was  held  to  be  tin 

67.  Larke  v.    John  Hancock    Mutual  Life  Ins.    Co.,  90  Conn.  303.  97 
AtL  320,  12  N.  C.  C.  A.  308. 

68.  Caldwell  v.  Iowa   State   Traveling  Men's  Association,  156  la.  327. 
136  N.  W.  678. 

69.  Leslie   v.  O'Connor  &   Richman,  5  N.  Y.  St.  Rep.  383,  11  N.  C.  C. 
A.    501;  Aff'd,,  173  N.  Y.  App.  Div.  988,  220  N.  Y.'672,  116  N.  B.  1057. 

70.  Mutter  v.  Thomson,  50   Scot.  L.  R.  447,  6  B.  W.  C.  C.  424;     In  re 
Jake  Levinson,  2nd  A.  R.  U.  S.  C.  C.  105. 

71.  Dependent  of  Frank  King  v.   City  Ice   &  Coal    Co.,  2  Conn.   C.  D. 
Part  1,  p.   168. 

360 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    186 

proximate  result  of  an  injury  which  he  had  received  twenty  fhe 
days  prior  to  his  death.72 

Where  the  employee  suffered  an  accidental  injury  to  his  leg,  ap- 
parently trivial  in  itself,  and  infection  followed,  so  that  erysipelas 
developed  six  days  after,  there  was  no  new  intervening  cause  of 
the  disability,  "the  chain  of  causation  has  no  missing  link,  and 
the  injury  was  the  proximate  cause  of  the  continuing  disabili- 
ty. "T8 

A  workman  employed  as  a  molder  received  some  slight  burns 
upon  his  arm ;  ten  days  later  erysipelas  developed  at  the  site  of  the 
injuries  and  caused  death.  Compensation  was  allowed.74 

Where  the  medical  testimony  was  to  the  effect  that  erysipelas 
was  not  caused  by  an  injury,  compensation  was  denied.75 

§  185.  Eyesight. — Where  an  employee  engaged  as  a  show 
card  writer,  while  using  wood  alcohol  to  clean  apparatus,  had  his 
vision  impaired  by  reason  of  the  fact  that  his  eyes  and  optic  nervo 
were  exposed  to  and  in  Contact  with  the  vapor  of  wood  alcohol  in 
unusual  quantities,  it  was  held  to  constitute  an  injury  sustained  by 
accident,  within  the  meaning  of  the  California  Act,  as  it  read  in 
January,  1914,  in  that  it  was  unexpected,  and  unintentional.70 

§  186.  Eye  Injuries. — ''The  opinions  of  the  doctors  cannot  be 
reconciled.  The  testimony  of  the  respondent  is  that  he  was  a 
carpenter  by  trade,  that  up  to  the  time  of  the  accident  he  used 
either  eye  as  convenience  dictated,  and  that  there  had  been  no 
trouble  with  or  diminution  of  his  vision.  A  neighbor  testified 
that  about  a  year  before  the  accident  he  was  with  respondent  when 
he  was  shooting  hogs  and  that  he  could  shoot  from  one  shoulder 
as  well  as  the  other,  and  that  he  never  complained  about  his  eye- 
sight. One  of  the  first  inquiries  made  by  oculists!  in  cases  of 

72.  Dunham  v.  Clare,  4  W.  C.  C,  102;   Stadlinski  v.   Smith  Co.  Inc., 
1  Conn.  C.  C.  370. 

73.  Nash  v.  The  General  Petroleum  Co.,  1  Cal.  I.  A.  C.  D.  103. 

74.  In  re  Hipsher.  Vol.  4,  Ohio  I.  C.  129. 

76.     In  re  Patrick  J.  Farrell,  2nd    A.  R.  U.  8.  C.  C.  105. 
76.    Fidelity  &  Casualty  Co.  of  N.   Y.  v.  Industrial  Ace.  Com.,  22  Cal. 
App.  Dec.  816,  5  Cal.  I.  A.  C.  38. 

361 


§  186  WORKMEN'S  COMPENSATION  LAWS. 

atrophy  of  the  optic  nerve  is  whether  the  patient  has  ever  been 
afflicted  with  lues  or  any  germ-carrying  disease.  There  is  no  evi- 
dence that  respondent  was  ever  so  afflicted.  He  denies  that  he 
was  ever  the  victim  of  any  such  condition.  These  physical  facts, 
coupled  with  the  opinion  of  reputable  oculists  that  the  condition 
may  have  resulted  from  the  accident  is  enough  to  sustain  the 
judgment  of  the  court  below."  " 

Loss  of  eyesight  by  a  show  card  writer,  caused  by  the  use  of 
wood  alchohol,  was  held  to  be  an  accident  within  the  California 
Workmen's  Compensation  Act,  where  it  was  shown  that  in  his 
work  he  used  dyes  dissolved  in  wood  alcohol  and  forced  by  air 
pressure  through  a  needle,  but  ordinarily  used  this  appliance  very 
little  but  that  just  prior  to  the  injury,  which  came  on  suddenly, 
he  used  an  extraordinary  quantity  in  cleaning  the  apparatus  and 
his  hands.78 

"When  an  accident  to  the  eye,  which  does  not  appear  serious  at 
first,  but  which  results  after  a  week  or  more,  in  a  diseased  condi- 
tion which  destroys  the  sight  of  the  eye,  the  "injury  occurred," 
within  the  meaning  of  the  statute,  when  the  diseased  condition 
culminated.79 

A  partial  and  temporary  loss  of  sight,  caused  by  the  bursting 
of  small  blood  vessels  in  the  eye,  due  to  increased  blood  pressure 
resulting  from  heavy  lifting,  was  held  compensable.80 

It  was  held  to  be  an  accidental  injury  where  a  workman  while 
unloading  bran  containing  grit,  got  some  in  his  eye,  and,  rubbing 
it,  caused  an  abrasion,  necessitating  the  removal  of  the  eye.81 

Compensation  was  refused  for  loss  of  an  eye  due  to  a  gonor- 
rheal  infection,  where  claimant  was  a  plumber  and  while  repairing 
a  water  basin  "something"  fell  into  his  eye,  which  caused  acute 
pain  and  impelled  him  to  rub  the  eye  in  an  effort  to  get  it  out. 
Two  or  three  days  later  the  infection  developed.  It  appeared  that 

77,  Nelson  v.  Industrial  Insurance  Department,  104  Wash.  204, 176  Pac. 
15,  17  N.  G.  C.  A.  1057. 

T8.  Fidelity  &  Casualty  Co.  of  N.  Y.  et.  al.  v.  Industrial  Accident  Com- 
mission of  California  177  Cal.  472,  171  Pac.  429,  17  N.  C.  C.  A.  785. 

79.  Johansen  v.  Union  Stockyards  Co.  99  Neb.  328,  126  N.  W.  511. 

80.  Gurney  v.  Los.  Angeles  Soap  Co..,  1  Cal.  I.  A.  C.  Dec.  163. 

81.  Adams  v.  Thompson   (1912),  5  B.  W.  C.  C.,  19  C.  A. 

362 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    186 

prior  to  the  accident  he  was  free  from  gonorrhea!  infection.  In 
refusing  an  award,  the  court  said:  "If  this  be  correct,  then  any 
man  at  work  at  any  occupation  who  gets  something  in  his  eye 
while  at  work  and  rubs  the  eye,  the  rubbing  being  followed  by 
gonorrheal  infection  may  recover  for  the  loss  of  the  eye  simply 
on  producing  evidence  of  these  facts,  together  with  evidence  tend- 
ing to  show  that  he  did  not  have  gonorrheal  infection  previously. 
We  cannot  agree  that  this  is  good  law.  It  bases  liability  upon 
conjecture.  Unless  there  be  some  evidence  tending  to  show  that 
the  substance  which  fell  in  the  eye  caused 'the  infection,  and  unless 
that  fact  be  found,  we  cannot  regard  the  subsequent  loss  of  the 
eye  as  proximately  resulting  from  an  injury  'incidental  to  or 
growing  out  of  employment. ' ' 82 

Claimant's  eye  had  been  injured  by  a  splinter  of  steel  striking 
it,  and  after  two  fellow  employees  had  attempted  to  remove  the 
steel,  one,  by  pushing  or  rolling  the  eyelid  back  with  a  match 
•wrapped  in  a  piece  of  cloth,  a  gonorrheal  infection  set  in  and 
caused  a  partial  loss  of  sight.  Compensation  was  awarded,  the 
court  saying:  "If  the  germ  was  introduced  in  an  attempt  to 
remove  the  flake  of  steel  from  the  eye,  it  was  a  direct  consequence 
of  the  accident,  and  arose  out  of  and  in  the  course  of  the  employ- 
ment. The  attempt  to  remove  the  particle  of  steel  was  a  natural 
and  necessary  result  of  its  entry  into  the  eye."83 

A  particle  of  ore  struck  a  miner  in  the  eye  and  in  attempting 
to  remove  it  a  fellow  workman  used  a  match  and  handkerchief, 
after  which  the  eye  was  washed  in  a  trough  used  in  common  by 
other  miners.  A  gonorrheal  infection  later  set  in,  destroying  the 
eye.  The  court  held  the  loss  of  the  eye  to  be  an  accident.84 

Where  fellow  workmen  attempted  to  remove  from  the  eye  of 
plaintiff,  a  spark  which  had  entered  it  from  a  passing  locomotive, 

82.  Voelz  v.  Industrial    Commission,   161    Wis.  240,   152  N.   W.   830, 
(1915),  15   N.  C.C.A.  590.     See  also   McCoy  v.   Michigan    Screw  Co.  180 
Mich.  454,  147  N.  \V.  572,  L>  R.  .A.  1916  A.  323,  5  N.  C.  C.  A.  455.    In  re 
James  S.    Connolly.  2nd  A.   R.  U.  S.  C.C.    115;     In  re    Thomas  H.    A. 
Beckett,  2nd.  A.  R.  U.  S.  C.  C.  114. 

83.  Cllne  v.  Studebaker  Corp.,  189  Mich.  514.  L.    R.  A.   1916  C.  1139, 
156  N.  W.  519,   (1915),  15  N.  C.  C.  A.  588. 

84.  State  ex  rel.   Adriatic   Min.  Co.   v.  District   Court   St.  Louis   Co., 
137  Minn.  435.  163  N.  W.  756,  15  N.  C.  C  A.  588. 


§  186  WORKMEN'S  COMPENSATION  LAWS. 

and  two  days  later  an  infection  developed,  due  to  gonorrhea! 
germs  causing  loss  of  sight,  he  was  awarded  compensation  for 
the  injury  sustained.85 

A  hard  substance  entered  the  eye  of  a  workman  while  working 
in  a  foundry,  and  after  being  removed  the  next  day  by  a  specialist, 
an  infection  developed  and  he  practically  lost  the  vision  thereof. 
The  award  was  affirmed,  it  being  held  the  injury  was  the  proximate 
cause  of  the  loss  of  vision.86 

Where  an  employee,  in  his  application  for  compensation,  stated 
that  while  he  was  sawing  timbers,  dirt  or  saw  dust  entered  his 
left  eye,  and  in  his  testimony  stated  that  while  so  engaged,  during 
a  strong  wind,  that  dust  flew  in  his  left  eye,  it  might  fairly  be 
inferred  that  saw  dust  from  his  sawing  flew  into  his  eye.  An 
award  in  his  favor  was  affirmed.87 

A  chip  from  a  chisel  caused  a  slight  injury  to  the  workman's 
eye.  Thereafter,  after  the  employee  and  at  least  four  other  per- 
sons had  touched  his  eye,  a  gonorrheal  infection  destroyed  the  eye. 
Compensation  was  denied  on  the  ground  that  the  loss  of  the  eye 
was  due  to  a  new  cause  independent  of  the  accident.88 

Compensation  was  awarded  for  the  loss  of  sight  of  an  eye  due 
to  a  strained  neck,  caused  by  an  attempt  to  steady  a  barrel  that 
had  slipped  from  the  hands  of  a  driver  while  in  the  act  of  loading 
it  upon  a  wagon.89 

Under  the  Federal  Act  conjunctivitis,  caused  by  working  in 
a  very  strong  light,  was  held  to  be  a  compensable  injury.90 

85.  Canadian  Pac.  R.  Co.  v.  Flore,  24  Dom.  L.  Rep.  T>Q  (1915),  15  N. 
C.  C.  A.  589. 

86.  New  Castle  Foundry  Co.   v.  Lysker,  Ind.  App.  120    N.  E.  713,  17  N. 
C.  C.  A.  791. 

87.  Dickinson  v.  Industrial  Board  of  Illinois,  280  111.  342,  117  N.  B.  438, 
(1917),  1  W.  C.  L.  J.  27,  16  N.  C.  C.  A.  888. 

88.  Doolan  v.  Henry  Hope  &  Sons,  Ltd.  1918  W.  C.  &  Ins.  Rep.  121;  1)19 
L.  T.  R.  14,   (1918),  17  N.  C.  C.  A.  879;  In  re  James  Quinn  2nd.  A   R  .U. 
S.  C.  C.  123. 

89.  Duffy  v.  Town  of  Brookline,  226  Mass.  131,  115  N.  E.    248,  14  N.  C. 
C.  A.  537. 

90.  In  re  H.  E.  Cuttright,  3rd  A.   R.  U.  S.  C.  C.  119;    But  see  to  the 
contrary,  In  re  James  Hawthorne,  3rd  A.  R.  U.  S.  C.  C.  120. 

364 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    188 

A  claim  for  impaired  vision  alleged  to  have  resulted  from  an 
injury,  was  denied,  where  the  medical  testimony  was  to  the  effect 
that  the  loss  of  vision  was  caused  by  glaucoma  and  cataract,  and 
not  by  the  injury.91 

Pink  eye  caused  by  dust  from  an  electric  fan  being  blown  into 
her  eye  and  contracted  from  association  with  a  fellow  employee  is 
a  compensable  injury  under  the  Federal  act.92 

Where  a  workman's  hood  was  accidentally  broken  while  at  work 
and  his  eyes  exposed  to  the  dazzling  light  caused  from  welding, 
which  resulted  in  the  loss  of  use  of  both  eyes,  his  injury  was  com- 
pensable.93 

§  187.  Facial  Paralysis. — A  candy  factory  employee,  working 
in  a  cool  room  gradually  developed  facial  paralysis.  This  was  held 
to  be  a  compensable  injury  under  the  Massachusetts  Act,  but  could 
not  of  course  be  so  considered  under  those  acts  where  the  injury 
must  be  the  result  of  an  accident.9* 

In  a  suit  for  damages,  at  common  law,  it  was  held  proper  for 
the  jury  to  decide  whether  facial  paralysis  resulted  from  the  em- 
ployer's failure  to  properly  heat  the  car  in  which  the  employee 
was  required  to  work.98 

§  188.  Falls  from  Vertigo  or  Other  Like  Causes. — Where  an 
employee  was  obliged  to  work  upon  a  pile  of  brick,  fifteen  feet, 
above  the  ground,  and  was  seized  with  an  attack  of  vertigo,  caus- 
ing him  to  fall,  sustaining  injury,  the  court  held,  in  a  Xew  York 
case,  that  the  fainting  and  fall  were  caused  by  the  elevated  posi- 
tion in  which  the  employee  was  working,  and  sustained  a  finding 
that  the  injury  was  accidental.96 

91.  In  re  Win.  S.  Hoover,  2nd  A.  R.  U.  8.  C.  C.  97;  In  re  Clarence  Me- 
Donough.  2nd  A.  R.  U.  S.  C.  C.  124. 

92.  In  re  Mary   J.  Hedges,  3rd  A.  R>  .U.  S.  C.  C.  132. 

93.  Rockford  City  Traction  Co.   v.  Indus.  Comm.— III.— .  (1920),   129 
N.  E  .136,  7  W.  C.  L.  J.  283. 

94.  Dalton  v.    Employers    Llab.    Assur.  Corp.    Ltd.,  2    Mass.    Workm. 
Comp.  Cas.  231. 

95.  St  Louis  and  S.  F.  R.  Co.  v.  MoCIain  (Okla).  162  Pac.  751  (1917). 

96.  Santa  Croce  v.  Sag  Harbor  Brick  Works,  182  N.  Y.  App.  Div.  442. 

365 


§  188  WORKMEN'S  COMPENSATION  LAWS. 

A  fall  from  a  scaffold,  caused  solely  by  an  epileptic  fit,  dizzi- 
ness or  fainting  spell,  cannot  be  said  to  result  from  an  accident 
arising  out  of  the  nature  or  conditions  of  the  employment,  when 
the  scaffold  was  only  a  few  feet  from  the  floor.97 

The  same  ruling  was  made  in  a  case  where  the  scaffold,  guarded 
by  a  rope,  was  39  feet  above  the  ground,  but  the  evidence  showed 
that  the  injured  employee  was  subject  to  epileptic  fits.98 

An  engine  driver,  after  tightening  a  nut  in  his  engine,  fell  to  the 
ground,  sustaining  injuries  from  which  he  died.  It  appeared  that 
he  had  been  subject  to  faintng  spells  previous  to  this  accident 
but  had  been  pronounced  physically  fit  for  his  postion  a  few  days 
before  the  accident,  by  the  company  physician.  It  was  held  to 
be  an  accident  arising  out  of  his  employment,  and  compensable.89 

A  man  working  on  the  edge  of  an  open  hold  of  a  ship  was  seized 
with  an  epileptic  fit,  causing  him  to  fall  into  the  hold.  This  was 
held  to  be  an  accident  arising  out  of  the  employment.1 

A  driver  of  an  express  wagon  fell  from  his  wagon  while  driving, 
due  to  an  epileptic  fit,  and  fractured  his  skull,  from  the  effects  of 
which  he  died.  The  Industrial  Accident  Board  held  that  the 
employee  was  exposed  to  a  substantial  and  increased  risk  owing 
to  his  occupation,  that  the  injury  arose  out  of  and  in  the  course  of 
his  employment,  and  was  compensable.2 

169    N.Y.Supp.  695,  1    W.  C.  L.  J.  1132,    (1918),   17    N.    C.   C.  A.   787; 
Miller  v.  Biel  —  Ind.  — ,  1920,  127  N.  E.  567,  6  W.   C.   L.  J.  315;   Board 
of  Comm.  of  Greene  Co.  v.  Shertzer  —  Ind.  App.  —  (1920),  127  N.  E. 
843,  6   W.  C.  L.  J.  310. 

97.  Van  Gorder  v.  Packard  Motor  Car  Co.,  195  Mich.  588,  (1917),  15  N. 
C.  C.  A,   214,  162  N.  W.  107;  In  re  W.    L.  Soders  3rd  A.  R.  U.  S.  C.    C. 
129;  In  re  Geo.  L.  Farmer,  2nd  A.  R.  U.  S.  C.  C.  94. 

98.  Brooker  v.  Industrial  Ace.  Commission  176  Cal.  275,   (1917),  15  N. 
C.  C.  A,  215,  168  Pac.  126. 

99.  Fennah   v.    Midland  &   Great  Western   Ry.   of   Ireland    (1911)    45 
Irish  L.  T.  192,  4  B.  W.  C.  C.  440;  Miller  v.  Biel,  —  Ind.  App.  — ,  1921,  129 
N.  E.  493. 

1.  Wicks  v.   Dowell  &    Co.  Ltd.,  7    W.    C.  C.  14  C.  A. 

2.  Driscoll  v.    Cushman's  Express  Co.,   (Mass.),  W.  C.  C.  1912-13-125, 
130. 

366 


PERSONAL  INJURY  OR  DKATII    BY  ACCIDENT.  §    188 

Where  there  is  no  peculiar  hazard  connected  with  the  place  of 
the  fall,  injuries  sustained  from  a  fall  due  to  an  epileptic  fit  are 
not  compensable.8 

Claimant  was  attacked  with  vertigo  and  fell,  forward  on  a  ma- 
chine, upon  which  he  was  employed,  sustaining  injuries,  \vhi.-h  de- 
veloped into  inflammatory  rheumatism.  Physicians  claimed  that 
this  disease  might  have  been  latent,  and  made  active  by  the  fall. 
The  court  held  this  to  be  an  injury  "in  the  course  of  the  employ- 
ment," stating  that  disability  resulting  from  disease  directly  due 
to  a  physical  injury  or  lighted  up  thereby,  is  an  injury  within  the 
meaning  of  the  act.4 

A  watchman  who  fell  into  a  fire,  while  rendered  unconscious 
by  an  attack  of  epilepsy,  and  who  was  badly  burned,  was  held  to 
have  sustained  an  injury,  within  the  meaning  of  the  act.  5. 

Where  a  janitor,  overcome  by  heat  while  carrying  a  message,  fell 
backwards,  striking  his  head  on  a  pavement  and  died  from  the  ef- 
fects of  the  injury,  it  was  held  that  this  was  not  an  injury  arising 
out  of  the  employment.0 

A  carman  sustained  injuries  in  a  fall  from  his  van.  Three 
weeks  later  the  man  died.  No  evidence  being  offered  to  show  any 
connection  between  the  fall  and  the  cause  of  the  death,  the  court 
held  that  it  could  not  be  said  that  di-a'li  w  is  caused  by  the  acci- 
dent.7 

Where  a  workman  fell  from  a  cart,  was  injured,  and  died  nine 
days  later,  the  medical  evidence  being  to  the  effect  that  no  con- 
nection existed  between  the  fall  and  the  cause  of  the  death,  the 
court  held  that  the  defendent  did  not  prove  that  the  death  was 
due  to  the  accident,  and  denied  compensation.8 

A  workhouse  master,  suffering  from  tuberculosis,  had  a  fit  of 
coughing  while  seated  upon  steps  leading  to  his  private  room. 

3.  Kowalski  v.  Trostel  &  Sons,  Fourth  Annual  Rep.  Wia.  Indus.  Cam. 
p.  17;  In  ro  Stanley  Lonowskix  3rd  A.  R.  U.  8.  C.  C.  122. 

4.  Re   Washington  Ellmore,  Op.  Sol.  Dep.  C.  &  L.  P.    207. 

5.  Re.  E.  B.  Clements,  Op.  Sol.  Dep.  C.  &  L.  pg.  190. 

6.  Rodger  v.  Paisley  School  Board  49  Sc.  L.  R.  413,  5  B.  W.  C.  C.  547. 

7.  Honor  v.  Painter  (1911).  4  B.  W.  C.  C.  188. 

8.  Brown  v.  Kidman  (1911),  4  B.  W.  C.  C.  199. 

367 


§  188  WORKMEN'S  COMPENSATION  LAWS. 

Giddiness  resulted  from  the  coughing  and  caused  him  to  fall  down 
the  steps,  breaking  a  rib,  which  caused  pneumonia,  resulting  in 
death.  This  was  held  not  to  be  an  accident  arising  out  of  the  em- 
ployment.9 

A  buyer  and  department  store  manager,  during  a  business  trip, 
fell  upon  the  bath  room  floor  of  a  hotel  and  suffered  injury  to 
his  face.  The  fall  was  caused  by  an  attack  of  faintness.  It  was 
held  the  accident  did  not  arise  out  of  the  employment.10 

"Where  a  workman  suffered  a  dislocation  of  his  shoulder  and 
other  injuries  as  a  result  of  a  fall  caused  by  an  epileptic  fit.  Com- 
pensation was  denied.11 

"Where  the  driver  of  a  coal  wagon  fell  dead,  and  no  fracture) 
of  the  skull  or  other  evidence  indicated  that  death  resulted  from 
the  fall,  but  that  it  was  due  to  natural  causes,  it  was  held  that 
this  was  not  an  injury  for  which  compensation  could  be  allowed.12 

Where  a  hack  driver  was  pitched  from  his  seat  by  the  motion 
of  the  hack  while  driving  and  while  helpless  from  dizziness  or 
unconsciousness  occasioned  by  a  disease  from  which  he  was  suffer- 
ing, he  was  entitled  to  compensation  for  the  resulting  injuries, 
since  his  fall  was  an  "accident  arising  out  of  his  employment."13 

Where  an  employee  fell  as  the  result  of  dizziness  and  disease 
and  disability  continued,  but  was  not  due  to  the  fall,  compensation 
was  denied.14 

Falls  caused  by  dizziness,  epilepsy,  weakness  and  etc.,  while 
the  employee  is  engaged  in  his  regular  duties,  and  resulting  in 
injuries,  justify  an  award  under  the  Federal  Act.15 

9.  Butler  v.  Burton  on  Trent  Union  (1912),  5  B.  W.  C.  C.  355. 

10.  Jacobs  v.  Davis -Schonwasser  Co.,  2  Cal.  Ind.  Ace.  Com.  (Part  II), 
50. 

llv    Trostel  &  Sons'  Fourth  Annual  Report  (1915)  Wis.  Ind.  Com.  17. 
12.    Lewis  v.  Globe  Indemnity  Co.,  1  Mass.  Ind<  Ace.  Bd.  48. 
(13.    'Caroll  v.  What  Cheer  Stables  Co.,  —  R.  I.  —  96  Atl.  208. 

14.  Swart  v.  Panama  Cal<  Espos.  Co.  and  Md.  Casulty  Co.,  1  Cal.  Ind. 
Ace.  Com.  (Part  2  ),  50, 

See  Cerbral  Hemmorrhage,  note  1. 

15.  In   re    James  J.  Gorman   2nd  A.  R.  U.  S.  C.  C.  249;      In  re  Geo. 
Uzuack,  2nd   A.  R.  U.  S.  C.  C.  250;  In  re  Lydia  K.  Armentraut  2nd.  A.  R. 
TJ.  S.  C.  C.  250. 

368 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    192 

§  189.  Felon. — A  frog  felon,  resulting  from  a  bruise  caused 
by  pressing  the  hand  against  a  screw  driver,  was  not  caused 
by  an  accident.  "An  accidental  event  takes  place  without  one's 
foresight  or  expectation;  an  event  that  proceeds  from  an  un- 
known cause,  or  is  an  unusual  effect  of  the  known  cause,  and 
therefore  not. expected."16 

§  190.  Flat  Foot  from  Traumatism, — Flat  foot,  resulting  from 
accidental  traumatism  was  held  to  be  com-pensable.17 

§  191.  Floating  Kidney. — An  employee,  suffering  for  a  con- 
siderable time  with  a  floating  kidney,  is  not  entitled  to  compen- 
sation in  the  absence  of  evidence  to  show  that  the  injury  resulted 
from  an  accident  in  the  course  of  his  employment.18 

§  192  Frostbite  and  Freezing. — An  employee,  engaged  in 
chopping  wood  and  building  a  road,  froze  his  thumb,  necessitating 
its  amputation.  In  the  Minnesota  Act  it  is  provided  that  the  word 
""accident,"  as  used  in  the  act,  unless  a  different  meaning  is  indi- 
cated by  the  context,  shall  be  construed  to  mean  "an  unexpected 
or  unforeseen  event,  happening  suddenly  and  violently  with  or 
without  human  fault."  On  certiorari  to  review  an  award  of  com- 
pensation in  favor  of  the  employee  the  court,  after  remarking 
that  freezing  was  a  personal  injury  within  the  meaning  of  the  act 
without  question,  and  likewise  that  it  was  obvious  that  it  was 
an  "unexpected  and  unforeseen  event,"  said:  "The  difficult 
question  is  whether  the  requirement  that  the  event  be  one  'happen- 
ing suddenly  and  violently'  excludes  it.  Freezing  comes  suddenly 
and  violently  as  distinguished  from  gradually  and  naturally  or 
in  ordinary  course.  In  common  talk  a  sudden  or  violent  death 
is  one  occurring  unexpectedly  and  not  naturally  or  in  the  ordi- 
nary course  of  events.  In  some  such  sense  the  words  are  used 

16.  Woodruff  v.  R.  H.  Howes  Const.  Co.,  —  N.  Y.  App.  Div.  — ,  (1920). 
127  N.  E.  270,  6  W.  C.  L.  J.  72. 

17.  Freeh  v.  San  Joaquin  and  Power  Corp.  2  Cal.  Ind.  Ace.  Com.  641. 

18.  Oberts  v.  Wisconsin  Telephone  Co,.  Fourth  Annual  Report  (1915) 
Wis.  Ind.  Com.  24. 

369 

W.  C— 24 


§  192  WORKMEN'S  COMPENSATION  LAWS. 

in  the  statute.  Their  effect  isi  not  to  exclude  from  accidental 
injuries  all  except  such  as  result  from  physical  force  applied 
from  without.  It  is  suggested  in  argument  that  these  particular 
words  with  others  employed  in  the  same  connection  were  used  in 
caution  to  exclude  occupational  and  other  diseases.  Whether  such 
is  their  effect  is  not  for  decision  here.  We  think  that  a  fair  con- 
struction of  the  statutory  definition  does  not  exclude  freezing  and 
we  hold  that  it  is  a  personal  injury  caused  by  accident  within  the 
meaning  of  the  act. ' J19 

It  was  held  that  where  the  evidence  warranted  a  finding  that 
the  employee  was  exposed  to  materially  greater  danger  of  getting 
his  hands  frozen  than  the  ordinary  outdoor  worker,  that  therefore 
the  injury  arose  out  of  the  employment  and  was  not  merely  a 
consequence  of  working  out  of  doors  in  severe  weather.20 

A  woodsman  misunderstood  his  orders,  and  then  worked  so 
hard  to  catch  up  that  his  feet  perspired  freely  and  then  froze 
on  the  way  home.  The  court  held  the  injury  "was  proximately 
caused  by  accident,"  saying:  "If  the  claimant  while  engaged  in 
his  work  had  wet  his  feet  by  stepping  into  a  spring  and  freezing 
had  resulted  therefrom,  it  could  scarcely  be  claimed  that  the  in- 
jury was  not  proximately  caused  by  accident. ' ' 21 

An  employee,  engaged  in  carrying  coal  from  a  wagon  into 
customer's  houses,  had  his  toes  and  fingers  frostbitten,  making 
necessary  the  amputation  of  some  of  his  fingers.  It  was  held  that 
the  injury  was  accidental  and  arose  out  of  the  employment.22 

A  janitor  froze  his  big  toe  while  intermittently  for  1%  hours 
shovelling  snow  and  attending  to  a  fire  in  a  furnace.  The  freez- 
ing of  the  toe  resulted  in  the  amputation  of  his  leg.  This  was 
held  to  be  an  accident,  as  the  employee  was  more  exposed  to  the 

1-9.  State  ex  rel.  Virginia  &  Rainy  Lake  Co.  v.  District  Court  St.  Louis 
Co.,  138  Minn.  131,  164  N.  W.  585  (1917). 

20.  McMahaman's  Case,  224  Mass.  554,  113  N.  E.  287,  12  N.  C.  C.  A.  313. 

21.  Ellingson  Lumber  Co.  v.  Indusrital  Comm.  of  Wis.,  168  Wis.  227, 
169  N.  W.  568,  (1918) ;  3  W.  C.  L.  J.  215,  17  N.  C.  C.  A.  1003. 

22.  Days  v.  TrimuDer  &  Sons,  176  N.  Y.  App.  Div.  124,  162  N.  Y.  Supp. 
603. 

370 


PERSON AL  INJURY  OR  DEATH  BY  ACCIDENT.       §  192 

risk  of  freezing  than  the  generality  of  workers,  and  the  added 
risk  was  because  of  the  character  of  the  employment.23 

An  employee  came  home  in  the  evening  from  work  with  his  feet 
frozen.  There  was  conflict  in  the  testimony  as  to  in  which  de- 
partment of  the  defendant's  plant  he  had  worked.  The  court 
held  that  under  the  evidence,  the  frozen  foot,  which  resulted  in 
the  employee's  death  might  have  been  frozen  while  at  work,  while 
going  to  work,  or  any  one  of  numerous  places.  The  judgment  for 
the  plaintiff  was  reversed.2* 

While  rolling  logs  in  the  woods  on  an  exceptionally  cold  day,  a 
log  roller  froze  his  toes.  It  was  held  that  he  suffered  an  acciden- 
tal injury.28 

An  employee  who  froze  his  fingers  while  harvesting  ice  when  the 
temperature  was  30°  below  zero,  suffered  an  accidental  injury.28 

Where  a  workman  froze  his  fingers  on  a  moderately  cold  day 
there  being  no  sudden  drop  in  temperature,  and  he  was  exposed  to 
only  ordinary  risk  of  the  community,  it  was  held  that  he  did  not 
suffer  an  accidental  injury.27 

Generally  injuries  suffered  from  so  called  acts  of  God,  such  as 
freezing,  do  not  constitute  accidental  injuries  unless  the  injured 
workman  is  exposed  to  greater  risk  of  freezing  than  are  the  or- 
dinary persons  of  the  community.28 

Where  a  workman  was  employed  at  carting  ashes  in  an  exposed 
place  on  an  exceptionally  cold  day,  his  exposure  being  greater  than 
the  exposure  of  the  community,  and  his  hands  became  frozen  while 
doing  such  work,  he  suffered  a  compensable  injury.29 

23.  State  ex  rel.  Nelson  v.  District  Court  Ramsey  Co.,  164  N.  W.  917, 
138,  Minn.  260,  1  W.  C.  L.  J.  97. 

24.  Davis  v.  Fowler  Packing  Co.,  101  Kan.  769,  168  Pac.  1111. 

25.  Link  v.  Millard,  4  N.  Y.  St.  Dep.  Rep.  385. 

26.  Cole  v.  Callahan  &  Sperry,  4  N.  Y.  St.  Dep.  Rep.  348. 

27.  Ketron  v.  United  Railroads  of  San  Francisco,  1  Cal.  I.  A.  C.  Dec. 
628;  Laspada  v.  Public  Service  By.  Co.,  38  N.  J.  L.  J.  102. 

28.  Fensler  v.  Associated  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  447. 

29.  D.   J.  Shanahan   v.   Clifford   E.   Minor,   2  Conn.  C.  D.  622;  Wm. 
Rainy   v.  The   Tunnel  Coal  Co.,   2  Conn.    C.  D.   646;     In   re  Robert  r. 
L.    Cameron,   2nd  A.  R.  U.  S.  C.  C.    202;      In  re   Walter  Froffl.  2nd 
A.  R.  U.  8.  C.  C.  203;  In  re  Oma  O.  Dixon,  2nd  A.  R,  U.  8.  C.  C.  204. 

871 


§  193  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  insurance  solicitor  froze  his  nose  while  driving  twenty 
miles  in  the  regular  course  of  his  business  on  an  exceptionally  cold 
day,  from  which  he  contracted  erysipelas  and  died,  it  was  held  to 
be  an  accidental  injury,  and  was  compensable.30 

An  employee  engaged  in  one  of  defendant's  power  sub-stations, 
was  frozen  to  death  in  a  snow  storm  in  the  mountains,  where  ho 
had  voluntarily  gone  with  another  employee.  The  court  held 
that  his  dependents  were  entitled  to  death  benefits  as  for  acciden- 
tal death.31 

"Where  a  coal  shoveler's  employment  required  him,  on  a  very 
cold  day  to  shovel  coal  in  a  coal  yard  outdoors,  from  seven  o  'clock 
in  the  morning  until  seven  o'clock  in  the  evening,  with  the  excep- 
tion of  one  hour  for  lunch,  whereby  he  froze  his  fingers',  the  court 
held  that  he  was  exposed  to  greater  risk  of  being  frozen  than  or- 
dinary outdoor  workmen,  and  suffered  a  compensable  injury.32 

Where  an  employee  was  required  to  stand  in  snow  two  feet  deep 
for  two  hours  passing  lumber  to  another  employee  inside  a  build- 
ing, it  was  held  that  he  was  especially  exposed  to  the  danger  of 
frostbite  and  that  subsequent  amputation  of  his  toes  was  the  re- 
sult of  an  accident  and  compensable.33 

Under  the  Federal  Act  compensation  was  allowed  to  a  mail  car- 
rier for  disability  from  freezing  due  to  a  depressed  circulation 
resulting  from  taking  aspirin  or  some  other  coal  tar  product  for 
rheumatism.34 

§  193.  Friction  Injuries.-— Where  on  account  of  an  abrasion 
on  the  thumb,  sustained  through  the  use  of  a  chisel,  microbes, 

30.  Margaret  Larke  v.  John  Hancock  Mutual  Life  Insurance  Co.  et  al., 
90  Conn.  303,  97  Atl.  320,  12  N.  C.  C.  A.  308. 

31.  Young  v.  Northern  California  Power  Co.  1  Cal.  Ind.  Ace.  Com.  88, 
32  N.  0.  C.  A.  309. 

32.  Doherty  v.  Employers  Liability  Assur.  Corp.  Ltd.,  2  Mass.  Work- 
man Comp.  Cas.  661,  12  N.  C.  C.  A.  312. 

33.  Gillis  v.  Maryland  Casualty  Co.,  3  Mass.  Workman  Comp.  Cases 
307. 

34.  In  r©  Thomas  Buckley,  2nd  A.R.U.S.C.C.  201. 

372 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    193 

entered,  causing  blood  poisoning  and  death,  the  death  was  held  to 
be  the  result  of  an  accident  arising  out  of  the  employment.85 

Where  an  employee  suffered  an  abrasion  and  abscess,  caused  by 
pressing  her  forefinger  against  heads  of  pins  while  pinning  shirts 
in  a  laundry,  the  abscess  was  held  to  be  the  result  of  accidental  in- 
jury.88 

Where  the  doing  of  a  particular  piece  of  work  requires  constant 
twisting  of  the  arms,  the  swelling  of  the  elbow  joint  caused  thereby 
is  an  accidental  injury.87 

\Vhrre  the  palm  of  an  employee's  hand  became  inflamed  and 
swollen  from  the  rubbing  of  a  shovel  handle  against  the  hand,  but 
which  caused  no  scratch,  cut  or  abscess,  it  was  held  that  the  disabil- 
ity did  not  result  from  an  accidental  injury.88 

A  disease  known  as  ''beat  hand"  or  ''beat  knee"  common  io 
miners  and  acquired  gradually  by  continued  friction,  is  held  not 
to  be  an  accidental  injury.39 

Paralysis,  gradually  acquired  from  riding  a  tricycle,  incapaci- 
tating the  employee  from  work,  is  not  a  personal  injury  by  acci- 
dent.40 

Under  the  Federal  Act,  abscess  and  blind  fistula,  brought  on  by 
sitting  on  cold  iron,  are  not  compensable.41 

Applicant  claimed  that  on  March  31,  while  engaged  in  cleaning 
red  oxide  drums,  her  thumb  was  poisoned  as  the  result  of  the  work, 
that  her  thumb  became  sore,  though  she  worked  for  five  days  after 
that,  and  on  April  8th  went  to  a  hospital  and  had  an  operation  per- 
formed for  septic  poisoning.  A  physician  testified  that  red  oxide 
would  not  injury  anyone.  The  court  found  that  the  disability  was 
not  occasioned  by  accident,  and  denied  compensation.42 

35.  Fleet  v.  Johnson  &  Sons,  6  B.  W.  C.  C.  60  C.  A. ;   State  Industrial 
Comra.  v.  Tolhurst  Mach.  Works,  184  N.  Y.  S.  608,  7  W.  0.  L.  J.  136. 

36.  Smith  v.  Munger  Laundry  Co.,  1  Cal.  Ind.  Ace.  Com.  (parti),  168! 

37.  Tracy  v.    DeLaval    Separate*  Co.,  7  N.    Y.  St.  Dep.    Rep.  385; 
In  rp  Walter  C.  Curtis.  3rd  A.  R.  U.  S.  C.  C.  113. 

38.  Potter  v.  City  of  Brawley,  3  Cal.  Ind.  Ace.  Com.  210. 

39.  Marshall  v.  East  Holywell  Coal  Co.,  7  W.  C.  C.  19. 

40.  Walker  v.  Hockney  Bros  ,2B.  W.  C.C.20. 

41.  Re  Andrew  Wilkes,  Op.  Sol.  Dep.  C.  &  L.  175. 

42.  Miller  v.  Jensen  &  Nicholson,  Ltd.,  (1918),  W.  C.  ft  Ins.  Rep.  51. 

373 


§  196  WORKMEN'S  COMPENSATION  LAWS. 

§  1 94.  Gangrene  from  Wound. — Where  Gangrene,  resulting 
from  a  crushed  toe,  spread  over  the  body,  causing  death,  it  was 
held  that  the  death  resulted  from  the  accidental  injury.43 

When  the  immediate  cause  of  the  death  of  an  employee  was 
gangrene,  which  developed  from  an  injury  to  the  foot,  the  court 
held  that  death  resulted  from  the  accidental  injury.44 

Gangrene  resulting  from  injury,  caused  by  the  dropping  of  a 
heavy  weight  upon  the  foot,  was  due  to  the  accident.45 

§  195.  Gastric  Ulcer. — Where  a  Chauffeur,  suffering  from  a 
gastric  ulcer,  was  cranking  his  employer's  automobile  and  im- 
mediately afterwards  the  ulcer  punctured  the  lining  of  the 
stomach,  as  such  ulcers,  according  to  medical  testimony,  are  liable 
to  do,  the  court  held  that  the  exertion  was  not  the  cause  of  the  in- 
jury, but  only  the  occasion,  and  compensation  was  denied.48 

§  196.  Headaches  from  Eye  Injury  and  Other  Causes. — "A 
claim  is  made  that  the  claimant  is  prevented  from  working  on 
account  of  headaches.  It  is  of  course  quite  possible  that  these 
headaches  proceed  from  the  injury,  and  it  is  not  affirmatively 
shown  that  they  do  not  proceed  from  the  injured  eye.  However, 
the  burden  of  proving  the  connection  between  the  injury  and 
the  incapacity  rests  upon  the  claimant. 

"It  is  not  permissible  for  the  commissioner  to  guess  in  this  con- 
nection. The  danger  of  guessing  is  illustrated  perhaps  by  head- 
ache cases  better  than  by  others.  Headaches  come  from  a  multi- 
tude of  causes,  and  it  may  be  the  barest  coincidence  that  there  has 
been  an  injury  to  the  eye,  I  cannot  therefore  do  otherwise  than 
overrule  the  claim. ' ' 48 

A  workman  who  was  compelled  to  exert  himself  lifting  heavy 
weights,  complained  of  headaches  to  his  foreman,  and  medical 

*  • 

43.  Meyer  v.  Pacific  Light  and  Power  Co.,  1  Cal.  Ind.  Ace.  Com.  (Part 

II),  333. 

44.  In  re  Wilson,  1  Bull.  Ohio  Ind.  Com.  84. 

45.  Stinton  v.  Brandon  Gas  Co.,  5  B.  W.  C.  C.  426. 

46.  Chenoweth  v.  Mitchell,  2  Cal.  Ind.  <Acc.   Com.  96. 

48.     Stampick   v.  American  Steel  and  Wire  Co.,    1    Conn.  Coinp.  Dec. 
474. 
374 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    197 

evidence  tended  to  establish  the  fact  that  the  headaches  were  pro- 
duced by  the  strain.  The  court  held  this  to  be  a  compensable  in- 
jury.40 

§  197.  Heart  Disease. — A.  CASES  IN  WHICH  COMPENSATION  WAS 
AWARDED:  A  laborer  received  a  blow  over  the  heart,  and  later 
died.  A  physician  testified  that  a  blow  over  the  heart  would  cause 
acute  disease,  and  in  deceased's  case,  brought  on  a  condition 
known  as  "pericarditis,"  causing  death.  It  was  contended  that 
death  was  not  the  result  of  accident  but  of  disease ;  but  the  court 
held  that  the  evidence  supported  a  finding  that  death  resulted 
from  the  accidental  blow.50 

A  workman  employed  as  cook  on  a  lighter  was  suffering  from 
valvular  disease  of  the  heart.  In  an  attempt  to  save  clothes  and  a 
surveying  instrument  from  a  sinking  vessel,  he  so  aggravated  the 
disease  by  his  exertions  and  excitement  that  he  died.  It  was  held 
that  death' resulted  from  an  accident  that  arose  out  of  and  in  the 
course  of  his  employment.61 

Where  an  employee  collapsed  while  carrying  a  heavy  load,  and 
died  from  heart  disease,  the  court  held  that  the  failure  of  the  heart 
action  was  due  to  the  overexertion,  and  awarded  compensation  for 
the  death.52 

A  woman,  compelled  to  overexert  herself  while  pulling  carpet 
in  a  manufacturing  establishment,  aggravated  a  previous  condi- 
tion   of   weak  heart,    thereby   totally    incapacitating   herself   for 
\\nrk.     The  court  held  this  to  be  an  accidental  injury,  and  com 
pensable.83 

49.  Flaherty  v.  Locomobile  Co.  of  America,  1  Conn.  Comp.  Dec.  354. 

50.  Rucyrus  Co.  v.  Townsend.  64  Ind.  Ap.  — ,  117  N.  E.  656,  15  N.  C. 
C.  A.    646,  1  W.  C.  Iv.  J.  166. 

51.  In  re  Brig-htman,  220  Mass.  17,  107  N.  E.  627,  L.  R.  A.  1B16A.  321; 
8  N.  C.  C.  A.  102. 

52.  In  re  Fisher,  220  Mass.  581,  108  N.  E.    36,  UN.  C.  C.  A.  176;  In  re 
Gibbons  181  N.  Y.  App.  Div.  142,  168  N.  Y.  Supp.  412,  15  N.  C.  C.  A.  525, 
1  \\*.  C.  L.  J.  697;  Tracy  v.  Phil  &  Reading  Coal  &  Iron  Co.,  —  Pa.  — , 
(1921),  112  Atl.  740. 

53.  In  re    Madden  111    N.  E.  379,  222    Mass.  487,    14  N.  C.  C.  A.  538; 
In  re  Raymond  F.  Baker,  2nd  A.  R.  U.  9.  C.  C.  156. 

375 


§  197  WORKMEN'S  COMPENSATION  LAWS. 

Where  a  man,  suffering  from  cardiac  lesion,  aggravated  this 
condition  by  a  heavy  and  unusual  strain,  and  death  resulted,  the 
court  said  that  this  might  be  considered  as  accidental  and  within 
the  compensation  act.64 

A  night  watchman,  suffering  from  heart  disease,  became  ex- 
cited while  fighting  fire,  and  died  of  heart  failure.  His  death  was 
held  to  be  accidental.55 

An  electrotype  finisher  was  found  dead  in  a  chair  in  a  saloon, 
where  he  had  gone  after  the  day's  work.  Medical  testimony  estab- 
lished that  he  was  suffering  from  angina  pectoris  caused  by  over- 
work and  the  climbing  of  many  stairs  throughout  the  previous 
twenty  one  hours.  It  was  held  that  death  was  due  to  an  acciden- 
tal injury  occasioned  by  the  employment  and  compensable.56 

Where  an  electric  shock  precipitates  an  employee  against  a  work 
bench  with  such  force  as  to  cause  unusual  acceleration,  force  and 
pressure  in  the  action  of  the  heart,  resulting  in  paralysis,  it  was 
held  to  be  a  personal  injury  within  the  act.57 

A  car  shop  employee,  who  had  been  struck  in  the  abdomen  by  a 
piece  of  iron,  was  known  before  the  accident  to  be  in  a  precarious 
condition  from  valvular  trouble  of  the  heart.  He  quit  work,  and 
died  of  heart  trouble  about  nine  weeks  later.  Physicians  testi- 
fied that  he  might  have  lived  ten  to  twenty  years,  had  it  not  been 
for  the  accident.  Compensation  was  awarded.58 

Where  an  employee  slipped  and  fell  while  descending  a  stair- 
way, evidence  tending  to  show  that  he  had  been  suffering  from 
heart  disease  and  other  troubles,  and  that  a  fall  would  likely  cause 
death,  was  held  sufficient  to  sustain  a  finding  that  the  employee 
suffered  an  accident  at  the  plant.59 

54.  Uhl  v.  Guarantee  Const.  Co.,  174  N.  Y.  App.  571,  161  N.  Y.  Supp. 
659,  14  N.  C.  C.  A.  546;  Broliski  v.  Nichols  Copper  Co.,  171  N.  Y.  App. 
959,  155  N.  Y.   Supp.  1096.    . 

55.  Schroetke  v.  Jackson-Church  Co.  193  Mich.  616,  160  N.  W.  383. 

56.  McMurray    v.     Little   and    Ives,     Co.,    3    N.  Y.  St.  Dep.  Rep.  395. 

57.  Milliken  v.  U.  iSI.  Fidelity  Co.,  1  Mass.  I.  A.  Bd.  187. 

58.  Cook  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  179   N.  Y.  App.  Div.  9671,  166 
N.  Y.  S.  1090. 

59.  Sulberger  and  Sons  Co.  v.  Ind.  Com.,  285  111.  223,  120  N.  E.  535. 

376 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    197 

Death  from  heart  trouble  brought  on  by  strenuous  work  of  pitch- 
ing dust-laden  alfalfa  is  compensable  despite  the  fact  that  the  de- 
ceased was  suffering  from  a  diseased  condition  of  the  heart,  since 
the  dust  arising  from  the  alfalfa  was  the  proximate  cause.** 

Where  an  employee  fell  into  a  well  hole,  striking  against  a  cen- 
ter pole,  producing  a  contusion  of  his  right  side,  later  developing 
acute  pericarditis,  which  caused  his  death,  the  court  held  that 
death  resulted  from  heart  disease  which  was  the  result  of  the 
accident  and  compensation  was  awarded.61 

Where  heart  disease  was  brought  on  by  a  strain,  received  while 
lifting,  and  later  death  resulted  from  the  heart  disease,  the- death 
was  held  to  have  resulted  from  the  accident.62 

(B)  CASES  IN  WHICH  COMPENSATION  WAS  DENIED. 

Where  an  employee  working  on  the  street  received  a  blow  in  the 
side  from  a  shovel,  knocked  out  of  his  hand  by  a  passing  automo- 
bile and  death  resulted  later  from  adherent  pericarditis,  and  the 
medical  testimony  showed  that  he  was  afflicted  with  myocarditis, 
that  is,  inflammaton  of  the  muscular  tissues  of  the  heart,  and  that 
deceased  died  primarily  of  inanition,  and  that  the  accident,  if  it 
had  any  relation  at  all  to  the  death,  had  at  most  a  trivial  and  in- 
consequential relation,  and  could  not  be  looked  upon  as  the  cause 
of  the  death,  compensation  was  denied.64 

60.  Caroll  v.  Indus.  Comm.,  —Colo.  — ,  (1921),  195  Pac.  1097. 

61.  La  Fleur  v.  Wood,  178  N.  Y.  App.  Div.  397,  164  N.  Y.  8.  910. 

62.  Gibbons  v.  Marx  &  Rauolle,  181  N.  Y.  App.  Div.  142,  168  N.   Y.  S. 
412;    Santa  v.  Indus.  Ace.  Comm.,  175  Cal.  235,  165  Pac.  689. 

Additional  Cases  in  Which  Compensation  was  Awarded. 

Doughton  v.  Alfred  Hickman,  Ltd.,  (1913),  W.  C.  &  Ina.  Rep.  143, 
6  B.  W.  C.  C.  77,  8  N.  C.  C.  A.  103;  Clover  Clayton  &  Co  v.  Hughes, 
1910  A.  C.  242,  3  B.  W.  C.  C.  275.  2  B.  W.  C.  C.  15;  Western  Electric 
Co.  v.  Industrial  Board.  285  111.  279,  120  N.  E,  774;  Madden's  Case, 
222  Mass.  487,  111  N.  E.  379;  LaVeck  v.  Parke,  Davis  ft  Co., 
190  Mich.  604,  157  N.  W.  72;  Wiemert  v.  Boston  Elev.  Ry.,  216 
Mass.  598,  104,  N.  E.  360;  Gherdi  v.  Connecticut  Co.,  1  Conn. 
Comp.  Cases,  81;  Otot  v.  Amer.  Mutual  Liability  Ins.  Co.,  2  Mass. 
I.  A.  B.  254;  Hackford  v.  Beeder  &  Brown,  176  N.  Y.  App.  Div.  924,  162 
N.  Y.  S.  1122;  Gotdon  v.  Eastman  Kodak  Co.,  181  N.  Y.  App.  Div.  909. 

64.  Farrish  v.  Nugent,  1  Cal.  Ind.  Ace.  Com.  98;  Waldman  v.  Hermann, 
1  Cal.  Ind.  Ace.  Com.  82,  11  N.  C.  C.  A.  178. 

377 


§  197  WORKMEN'S  COMPENSATION  LAWS. 

A  bus  driver  fell  from  his  bus  and  died  immediately  afterward. 
The  case  was  decided  on  medical  evidence  alone,  and  the  court  held 
that  it  was  more  probable  that  death  was  caused  by  sudden  fatal 
heart  attack  than  that  it  was  caused  by  an  accidental  fall  aggra- 
vated by  the  state  of  the  heart.  In  any  event  death  was  not  due  to 
an  accident  and  compensation  was  denied.65 

Deceased  was  loading  stock  on  an  elevator  when  the  elevator 
started  up.  The  elevator  was  stopped,  and  stock  replaced,  and  de- 
ceased wheeled  it  about  forty  feet,  when  he  dropped  dead.  Physi- 
cians testified  that  the  death  was  due  to  fright  caused  by  sudden 
starting  of  the  elevator.  The  court  held  that  where  death  results 
from  fright  or  worry  unaccompained  by  any  immediate  physical 
injury  it  is  not  compensable.67 

Where  an  employee  was  found  dead  near  a  baling  press,  and 
there  was  no  evidence  proving  accident  or  accidental  injury,  the 
claim  being  that  the  heavy  work  that  deceased  was  doing  hastened 
his  death  by  heart  or  kidney  disease,  there  could  be  no  recovery.'18 

An  employee  suffering  from  accidental  injury,  died  from  heart 
disease  due  to  uremic  poisoning.  It  was  held  that  the  injury  had 
no  causal  relation  to  the  death  and  compensation  was  refused.69 

In  a  Michigan  case,  where  the  employee  died  of  a  rupture  of 
the  right  auricle  of  the  heart,  while  in  the  course  of  his  work  of 
lifting  and  pulling  rolls  of  wire,  weighing  150  to  160  pounds,  the 
court  said :  ' '  The  man  died  while  doing  the  work  he  agreed  to  do, 
in  the  way  he  intended  to  do  it.  The  exercise  accounts  for  his 
death,  and  if  he  had  been  informed  about  the  condition  of  his 
heart,  he  must  have  known  that  death  was  likely  to  result,  at  any 
time,  from  any  considerable  physical  exercise.  There  is  no  evi- 
dence of  mischance  or  miscalculation  in  what  was  being  done,  none 
of  anything  fortuitous  or  unexpected  in  the  manner  of  doing  it. 
There  is  undisputed  evidence  that  he  had  a  chronic  trouble — dis- 

65.     Thackway  v.  Connelly  &  Sons,  3  B.  W.  C.  C.  37,  8  N.  C.  C.  A.  106. 

67.  Visser  v.  Michigan  Cabinet  Co.,  Mich.  Ind.  Ace.  Bd.  Dec.   (No.  3, 
1913),   24,  10  N.  C.  C.  A.  1042;    O'Connell   v.    Adirondack   Elect.    Power 
Corp.,  —  N.  Y.  App.  Div.  (1920),  — ,  185  N.  Y  ISI.  455,  7  W.  C.  L.  J.  353. 

68.  Jakub  v.  Ind  Comm.,  (111.)  123  N.  E.  263,  4  W.  C.  L.  J.  153. 

69.  Lynch  v.  Travelers  Ins.  Co.,  2  Mass.  Ind.  Ace.  Bd.  591. 
378 


PERSONAL  INJURY  OR   I>K\TI!    HY  ACCIDENT.  §    108 

ease — of  the  heart,  of  long  standing,  the  wall  of  one  auricle  being 
so  thin  that  'any  exertion  at  all  might  have  been  the  cause  of  its 
breaking.'  Death  was  merely  hastened  by  the  exertion."70 

§  198.  Hemorrhage — .Where  the  claimant  and  his  brother 
were  lifting  a  heavy  barrel  of  jelly  when,  for  some  reason,  the 
brother  slipped,  allowing  the  whole  weight  of  the  barrel  to  bei 
thrown  suddenly  upon  the  claimant  while  in  a  stooping  position, 
causing  the  claimant  to  suffer  a  hemorrhage  in  the  lumbar  region 

70.  Stornbaugh  v.  Peerless  Wire  Fence  Co.,  164  N.  W.  637,  15  N.  C.  C. 
A.  635;    Collins  v.  Brooklyn  Union  Gas  Co.,  171  N.  Y.  App.  Div.  381,  156 
N.  Y.  S.  957,  15  N.  C.  C.  A.  647. 

ADDITIONAL  CASES  IN  WHICH  COMPENSATION  WAS  DENIED. 

71.  Johnson  v.  Mary  Charlotte  Min.  Co.,  199  Mich.  218,  165  N.  W.  650, 
16   N.    C.    C.    A.    647,   1  W."C.   L.   J.    393;     Coe  v.   Fife   Coal   Co.,   46 
Scotch  L.  R.  325,  2  B.  W.  C.  C.  8,  8  N.  C.  C.  A.  102;  Black  v.  New  Zealand 
Shipping  Co.,  6   B.  W.  C.   C.  720,  (1913),  W.  C.  &,  Ins.  Rep.  480,  8  N.  C. 
C.  A.  102;    Ritchie  v.  Kerr,  —  S.  C.  613,  50  Sc.  L.  R.  434,  6  B.  W.  C.  C. 
419,   (1913),  W.  C.  &  Ins.  Rep.  297,  8  N.  C.  C.  A.  102;    Tradder  v.  T.  M. 
Lennard  &  Sons,  Ltd.,  4  B.  W.  C.  C.  190,  8  N.  C.  C.  A.  104;    Ohara  v.  Hayes, 
44   I.  L.  T.  71,  3   B.  W.    C.  C.   586,  8   N.  C.  C.  A.   104;  Spence   v.  William 
Baird  &  Co.,  Ltd.,  1912  S.  C.  343,  49  Sc.  L.  R.  278,  5  B.  W.  C.  C.  542,  W.  C. 
Rep.  18,  8  N.  C.  C.  A.  104;    Hawkins  v.  Powell's  Tillery  Steam  Coal  Co.,  1 
K.   B.  988,  80,  L.  J.  K.  B.   769,  104   L.  T.   365,  27    T.  L.   R.  282,   55  Sol.  J. 
329.    4    B.  W.  C.  C.  178,  8  N.  C.    C.    A.  104;    Beaumont  v%  Underground 
Elec.    Rys.  Co.  of  London  1912  W.  C.  Rep.  123,  5  B.  W.  C.  C.  247,  8  N.  C.  C, 
A.  105;  Powers  v.  Smith,  3  B.  W.  C.  C.  470;  Hallett  v.  Jevne  Co.,  2  Cal.  I. 
A.  C.  259;  In  Re  Stith,    Ohio  Ind.  Comm.  No.  24574  11  N.  C.  C.  A.  180; 
Nolan  v.  N.  Eng.  Gas.  Co.,  2  Mass.  Ind.  Ace.  Bd.  417;  Ohara  v.  Employer's 
Liability  Ins.,  2  Mass.  Ind.  Ace.  369,  11  N.  C.  C.  A.  178;  In  re  Roland  K. 
Chambers,  3rd  A.  R.  U.  S.  C.  C.  124;    In  re  Chas.  J.  Petterson,  3rd  A.  R. 
U.  S.  C.  C.  124;    In  re  Richard  Morrisey,  2nd  A.  R.  U.  S.  C.  C.  161;    In  re 
Peter    Sweeney,   2nd    A.  R.  U.  S.   C.  C.  163;     Lightbown    v.    American 
Mutual  Liability  Assur.   Corp.  2   Mass.  Ind.  Ace.  Bd.  243,  Amesbury    v. 
Vacuum  Oil  Co.,  9  N.  Y.  St.  Dep.    Rep.  339;  Grant  v.  Morse  Dry  Dock  & 
Repair  Co.,  9  N.  Y.  St.  Rep.  401;  Re  P.  C.  Well  Op.  Sol.  Dep.  C.    &  L. 
P.  453;  Welch  v.  Employer's  Liability  A&sur.  Co.,  1  Mass.  Ind.  Ace.  B<l. 
173;  Tucillo  v.  Ward  Baking  Co.  180  N.  Y.  App.  Div.  302;  Margaret  Bush 
v.  Lamsville  Water  Co.,  Ky.  W.  C.  Bd.  L.  D.  Ind.  Rep.  152,  1919. 

379 


§  198  WORKMEN'S  COMPENSATION  LAWS. 

of  the  spine,  the  court  held  that  the  subsequent  disability  was  the 
result  of  an  accidental  injury.72 

The  plaintiff,  a  steam  fitter's  helper,  while  engaged  in  tending 
a  boiler  for  his  employer  attempted  to  move  two  steel  beams,  rest- 
ing about  three  feet  from  the  floor,  by  pushing  his  body  against 
them.  He  did  this  once  or  twice  when  he  became  sick  and  had 
to  sit  down.  He  later  vomited  blood  and  was  unable  to  work 
thereafter.  It  was  held  that  he  suffered  an  accident.73 

Where  a  workman  was  engaged  in  swinging  a  fifteen  pounc 
hammer  for  one  and  one-fourth  hours  in  the  forenoon  and  thirty 
minutes  in  the  afternoon,  after  which  he  began"  ten  operate  an 
overhead  traveler,  and  while  doing  this  he  fell  over  a;  pile  of 
stone,  striking  his  head,  the  court  held  that  his  subsequent  death 
from  cerebral  hemorrhage  was  the  result  of  an  accidental  injury.74 

Where  a  mason's  helper,  59  years  of  age,  was  engaged  in  push- 
ing a  wheel  barrow  and  tools,  weighing  150  pounds,  up  a  steep 
grade  for  the  distance  of  one  and  a  half  blocks,  over  an  alley 
which  was  rough  and  wet,  collapsed,  and  subsequently  died  as 
the  trial  court  found,  "due  to  the  muscular  strain  and  exer- 
tion employed  by  him  in  propelling  the  wheelbarrow,"  which 
caused  the  sudden  rupture  of  a  blood  vessel,  the  court  held  that 
the  deceased's  death  was  the  result  of  a  compensable  accident.76 

Claimants  husband  was  employed  by  defendant,  and  while  in 
the  cellar  of  a  new  building  under  construction  he  collapsed  and 
fell.  He  died  a  few  days  later  of  a  blood  clot  and  pressure  on 
the  brain.  Evidence  showed  that  he  fell  on  a  dirt  floor,  and  there 
was  nothing  to  indicate  that  he  had  tripped  or  fell  over  anything. 
The  only  visible  sign  of  an  injury  was  a  slight  scratch  on  his  cheek 
and  a  small  abrasion  on  his  forehead.  The  court  reversed  the 

72.  Schmidt  v.  O.  K.  Baking  Co.,  90  Conn.  217;   96  All.  963,  14  N.   C. 
C.A.  539;   Kiercok  v.  Phil.  &  Reading  Coal  &  Iron  Co.,  —  Pa. — ,1921,112 
Atl.  746. 

73.  Manning  v.  Pomerene,  101  Neb.  127,  162  N.  W.  492,  14  N.  C.  C.  A. 
536. 

74.  State  ex  rel.  Simmers  et  al.  v.  District  Court  of  Stearns   County, 
137  Minn.  318,  14  N.  C.  C.  A.  527,  163  N.  W.  667. 

75.  State   ex   rel    Puhlmann    v,   District   Court,    Brown    County,    137 
Minn.  30,  162  N.  W.  678,  14  N.  C.  C.  A.  545. 

380 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    199 

award  of  compensation,  saying  that  it  was  based  on  mere  guess  or 
conjecture.78 

A  workman 's  employment  required  him  to  break  rock  in  a  quarry 
with  a  36-pound  sledge  and  load  the  rock  into  a  car.  Shortly  after 
he  was  seen  breaking  large  rock  with  his  sledge,  he  suffered  a 
pulmonary  hemorrhage,  from  which  he  died  before  medical  aid 
could  reach  him.  The  court  reversing  the  decision  of  the  District 
court,  held  that  the  facts  indicated  an  accidental  injury  arising 
out  of  the  employment.77 

Temporary  blindness  due  to  hemorrhagic  spots  in  the  retina  of 
the  eye  of  an  employee,  following  exposure  to  intense  bright  light, 
was  held  to  be  due  to  natural  causes,  and  not  an  accident  arising 
out  of  the  employment.78 

Where  a  fireman,  working  in  a  stoke  hole,  drank  a  large  quanti- 
ty of  water,  causing  a  hemorrhage,  it  was  held  that  he  suffered 
an  accidental  injury,  for  which  compensation  would  be  allowed.78 

Where  a  strain  caused  internal  hemorrhage  from  which  the  em- 
ployee died,  it  was  held  that  the  death  was  the  result  of  an  acci- 
dental injury,  but  on  appeal  the  Supreme  court  of  California 
held  that  there  was  no  evidence  to  justify  this  finding  and  the 
award  was  annulled.80  • 

§  199.  Hemorrhoids. — Where  a  hod  carrier,  carrying  a  hod  up 
an  incline,  slipped  and  fell  against  a  building,  it  wa*  held  that 
even  though  the  exertion  might  have  caused  the  internal  hemor- 
rhoids to  become  external,  this  was  not  an  accidental  injury  for 
which  compensation  could  be  allowed.81 

Where  claimant  felt  a  sudden  pain  in  the  region  of  the  rectum 
caused  by  the  strain  of  lifting  the  handles  of  a  heavily  loaded 

76.  Hansen  v.  Turner  Const  Co.,  224  N.  Y.  331,  120  N.  E.  693. 

77.  r.illiiand    v.    Ash    Grove  Lime    &   Portland     Cement     Co.,    104 
Has.  771.  180  Pac.  793,  4  W.  C.  L.  J.  187. 

78.  Crouch  v.  Ritter,  2  Cal.  I.  A.  C.  702. 

79.  Johnson  v.  Owens  S.  S.  Torrlngton,  3  B.  W.  C.  C.  68. 

80.  Englebretson  v.  Indus.  Ace.  Com.— Cal. — ,  151  Pac.  421,  10  N.  C.  C. 
A.  545. 

Note:    For  further  cases  see  Cerebral  hemorrhage,  hemorrhage  under 
the  "arising  out  of"  chapter,  Injuries  to  eye,  and  Aneurism. 
91i    Truby  v.  Jackson,  3  Cal.  Ind.  Ace.  Com.  69. 

381 


§  200  WORKMEN'S  COMPENSATION  LAWS. 

truck  and  it  was  found  that  the  strain  caused  hemorrhoids,  the 
court  held  that  the  hemorrhoids  were  due  to  an  accidental  in- 
jury.82 

Aggravation  of  existing  hemorrhoids  from  straining  and  lift- 
ing is.  a  compensable  injury  under  the  Federal  Act.83 

§  200.  Hernia. — An  employee,  in  lifting,  severely  strained  his 
body,  causing  the  protrusion  of  an  intestine  into  an  existing  hernia 
sac  or  aperture.  It  was  contended  that  the  employee  was  afflicted 
with  a  disease  or  disabling  condition  which  rendered  him  suscep- 
tible to  injury  upon  exposure  to  "some  slight  accident"  either 
within  or  outside  his  employment.  The  court  said  "This  furnishes 
no  ground  for  holding  that  the  disease  or  condition  rather  than 
the  accident  was  the  proximate  cause  of  the  injury  upon  which 
the  award  for  disability  is  based."  *  *  *  84 

An  employee  working  as  stevedore  ruptured  himself  on  March 
29th.  On  April  2nd  he  was  operated  on,  and  left  the  hospital  on 
April  14th  in  an  emaciated  condition.  On  September  22nd  he  en- 
tered an  infirmary,  and  on  December  12th  died  of  pulmonary  tu- 
berculosis. On  appeal  the  court  declined  to  interfere  with  the  find- 
ing of  fact  by  the  county  court  judge  to  the  effect  that  the  rupture 
and  operation  were  not  the  cause  of  the  tuberculosis  which  re- 
sulted in  death.85 

A  rupture  caused  by  a  strain  while  the  employee  is  at  work,  is 
an  accident  or  untoward  event  and  as  such,  compensable.815 

"The  presence  of  a  structural  weakness  or  actual  pain,  antedat- 
ing the  injury  alleged,  in  the  region  where  the  injury  occurred, 
does  not  preclude  a  recovery  if  the  injury,  itself  is  distinct  and  the 

82.  Hallock  v.  The  American  Steel  &  Wire  Co.,  2  Conn.  W.  C.  C.  320. 

83.  In  re  Trevor  L.  Hill,  2nd  A.  R.  U.  S.  C.  C.  200. 

84.  Puritan    Bed  Springs    Co.  v.   Wolfe     (Ind.    App.),    120    N.  E.  417 
(1918),  17  N.  C.  C.  A.    872,  3  W.  C.  !>.  J.  39. 

85.  Kemp  v.  Clyde  Shipping  Co.  Ltd.,  119  L.  T.  R.  131,   (1918),  17  N. 
C.  C.  A.  875. 

86.  Poccardi  v.    Public  Service   Comm.,  75   W.  Va.    542,84    S.  E.  242; 
Jordan  v.  Decorative  Co.,  —  N,  Y.  App.  — ,  130  N.  E.    634,  1921. 

382 


PERSONAL  INJURY  OR   Hi;\TII    BY  ACCIDENT.  §    200 

result  of  a  particular  strain  causing  a  suddi-n  protrusion  of  the  in- 
testine."87 

"While  an  employee  was  lifting  bundles  of  paper  weighing 
from  40  to  60  pounds,  -which  work  he  had  done  regularly  every 
day  for  7  years,  he  felt  a  pain  which  indicated  to  his  physician, 
upon  examination,  that  he  had  sustained  a  rupture.  There  was  no 
blow  or  unusual  exertion,  nothing  out  of  the  ordinary  to  suggest 
to  the  employee  that  anything  he  then  did  caused  the  pain.  *  * 
No  attempt  was  made  to  prove  that  the  lifting  could  have  produc- 
ed the  rupture  which  later  developed.  Hernia  is  a  disease  arising 
out  of  natural  causes  as  well  as  from  accident,  and  it  was  there- 
fore incumbent  upon  the  claimant  to  offer  some  evidence  that  the 
employment  caused  or  could  have  caused  the  injury."89 

Where  an  employee 's  rupture  was  caused  by  an  attempt  to  move 
a  600  pound  gas  engine,  the  injury  was  held  to  be  accidental, 
though  the  strain  caused  the  rupture  because  the  tissues  were 
weak  and  not  normal.89 

Compensation  was  denied  for  the  death  of  a  workman  due  to 
strangulation  of  hernia,  alleged  to  have  been  brought  on  by  a 
fall.  Evidence  showed  that  the  workman  sustained  a  fall  but  fail- 
ed to  show  that  the  fall  in  any  way  caused  or  accelerated  the  rup- 
ture.00 

Hernia  caused  by  violent  coughing  is  not  compensable  in  the  ab- 
sence of  a  showing  that  the  cold,  which  caused  the  coughing  sp«-'il, 
was  brought  on  by  unusual  exposure.91 

Compensation  was  denied  on  the  ground  that  it  was  not  an  "ac- 
cidental injury"  where  applicant,  a  civil  engineer,  in  the  perform- 

87.  Bell  v.  Hayes  Ionia  Co..  192  Mich.  90,  158  N.  W.  179;  Casper  Cone 
Co.  v.  Industrial  Comm.  165  Wis.  255,  161  X.  W.  784,  14  N.  C.  C.  A.  537; 
Hurley  v.  Selden-Breck  Const.  Co*  193  Mich.   197,  159  N.  W.  311,  14  N. 
C.  C.  A.  529. 

88.  AJpert  v.  Powers,  223  X.  Y.  97,  119  X.  E.  229,  2  W.  C    L.  J.  106. 
17   N.  C.  C.  A.  789. 

89.  Robbing  v.  Original  Gas.  Engine  Co..  191  Mich.  122.  157  X.  W.  437. 
14  N.  C.  C.  A.  530;   In  re  Otto  GJorud,  2nd  A.  R.  IT.  S.  C.  C.  107;   In  re 
Edward  Adair.  2nd  A.  R.  U.  S.  C.  C.  109. 

90.  Marshall  v.  Sheppard    (1913),  6  B.  W.  C.  C.  571;  In  re  James   Mi- 
kolaseK,  2nd  A.  R.  U.  S.  C.  C.  106. 

91.  In  re  Geo.  L.  Schneider,  3rd  A.  R.  U.  S.  C.  C.  118. 

383 


§  200  WORKMEN'S  COMPENSATION  LAWS. 

ance  of  his  duties,  lifted  a  heavy  block  of  timber,  at  which  time 
he  felt  a  sharp  burning  pain  in  his  right  groin,  though  he  did  not 
slip  or  fall  nor  did  the  timber  he  was  lifting,  in  any  manner  strike 
him,  and  it  was  10  days  later  before  he  noticed  a  swelling  at  or 
about  the  place  he  felt  the  burning  pain.  The  court  said:  "Noth- 
ing out  of  the  ordinary  happened,  because  he  had  lifted  such  tim- 
bers before,  when  such  action  was  necessary  in  the  performance 
of  his  duties ;  and  down  to  the  time  of  the  hearing  he  had  remain- 
ed at  work  continuously.  It  seems  to  us  that  these  facts  conclu- 
sively shoAv  that  claimant  did  not  receive  an  accidental  injury 
within  the  meaning  of  the  act."92 

Where  the  deceased  suffered  from  chronic  myocarditis  prior  to 
an  operation,  performed  for  the  relief  of  a  hernia,  and  he  died 
from  this  disease  6  weeks  after  the  operation,  an  award  in  favor 
of  deceased's  widow  was  reversed,  where  the  evidence  did  not  sus- 
tain the  allegation  that  the  effects  of  the  operation  were  the  cause 
of  his  death.93 

In  denying  compensation  to  an  employee,  who,  while  lifting  an 
iron  beam  weighing  between  30  and  90  pounds,  and  which  he  had 
occasion  to  lift  as  many  as  100  times  a  day,  sustained  a  rupture  on 
one  of  these  occasions,  the  court  said:  "We  ar£  of  the  opinion  that 
an  employee  who  receives  an  injury  in  the  nature  of  a  hernia,  while 
engaged  in  his  usual  and  ordinary  employment,  without  the  inter- 
vention of  any  untoward  or  accidental  happening,  is  not  within  the 
provisions  of  the  compensation  act,  which  as  we  have  held  provides 
compensation  for  accidental  injuries  only. '  '°4 

The  duties  of  an  employee  of  a  school  district  required  him 
to  lift,  carry  and  throw  cord  wood  into  furnaces.  He  went  from 
his  house  to  the  school,  on  the  day  of  the  injury,  in  good  health. 
Upon  his  return  he  was  found  to  be  suffering  from  a  hernia. 
When  submitting  to  an  operation"  it  was  discovered  that  he  was 

92.  Tackles  v.  Bryant  &  Detwiler,  200  Mich.  350,  167  N.  W.  36,  17  N.  C. 
C.  A.  789,  1  W.  C.  L.  J.  1031. 

93.  Tucillo  v.  Ward  Baking  Co.,  180  N.  Y.  ACT?.    302,  167  N.  Y.  Supp. 
666,  15  N.  G.  C.  A.  637,  1  W.  C.  L.  J.  439. 

94.  Kutschmar  v.  Briggs  Mfg.  Co.,  197  Mich.  146,  163  N.  W.  933,  15 'N. 
C.  C.  A.  523. 

384 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    200 

suffering  from  another  hernia  of  previous  origin.  An  operation 
was  performed  for  the  two  and  infection  resulted  in  both  wounds, 
causing  death.  It  was  contended  that  it  was  not  shown  whichj 
wound  became  infected.  In  disposing  of  this  contention,  the  cxmrt, 
after  briefly  referring  to  the  evidence,  said  that  it  was  a  reason- 
able conclusion  to  draw  that  both  incisions  were  infected  during 
the  operation  and  that  the  fatal  blood  poisoning  would  have  taken 
place  even  if  the  injured  man  had  only  been  operated  upon  for 
the  injury  arising  from  the  accident.  The  court  stated  the  general 
rule,  namely:  "If  an  accident  necessitates  an  operation  and  death 
ensues,  even  though  it  is  not  a  natural  or  probable  consequence, 
the  death  may,  if  the  chain  of  causation  is  unbroken,  be  said  to 
have  in  fact  resulted  from  the  injury."96 

Where  the  wife  of  an  "engine  tamer"  sought  compensation 
for  the  death  of  her  husband,  following  an  operation  for  a  hernia, 
alleged  to  have  resulted  from  a  strain  received  in  the  course  of 
the  employment,  compensation  was  denied  because  of  lack  of  any 
direct  or  circumstantial  evidence  to  prove  that  the  hernia  was  due 
to  an  accident  received  during  his  employment.  The  court  said : 
"Declarations  made  by  one  injured  to  his  attending  physician  are 
admissible  in  evidence  when  they  relate  to  the  part  of  his  body 
injured,  his  suffering,  symptoms,  and  the  like,  but  not  if  they  re- 
late to  the  cause  of  the  injury."'* 

Where  an  employee  aggravated  two  hernias  by  straining  the 
muscles  of  his  back  while  lifting  a  heavy  steel  girder,  and  death 
resulted  later,  the  trial  court  found  that  the  death  was  due  to  th<» 
accident,  which  finding  was  held  to  be  conclusive.97 

95.  Eddies  v.  School  District  of  Winnipeg  No.  1,  22  Manitoba  240,  21 
W.  L.   R.  214,  2.  W.  W.  R.  265,   2  Dom.  L.  R.  696,   (1912).  14    N.  C.  C. 
A.   542 

96.  Chicago  &  A.  R.  Co.  v.  Indus.  Bd.  of  III.,  274  111.  336.  113  X.  E.  629. 
14  N.  C.  C.  A.  541. 

97.  New  York  Switch  and  Crossing  Co.  v.  Mullenbach,  92  N.  J.  L.  254. 
103  Atl  803,  2  W.  C.  L.  J.  346;  17  N.  C.  C.  A.  865;  Gartner  v.  N.  Y   Dairy 
Produce  Co.,  179  N.  Y.  App.  Div.  950;  Coons  v.  Endicott  Johnson  &  Co., 
181    N.   Y.   App.    Div.   963.    168    N.   Y.    S.    1105;     Bellaflore   v.    Roman 
Bronze  Works.  181;  N.  Y.    App.  Div.  910,  167  N.  Y.    S.  1088;  Fleming  v. 
Robert  Gair  Co,  176  N.    Y.  App.  Div.  — .  162  N.  Y.    Supp.  298,  14  N.  C. 

385 

W.  C.— -25 


§  200  WORKMEN'S  COMPENSATION  LAWS. 

Claimant  alleged  that  he  strained  .himself  while  lifting  rock 
and  suffered  an  internal  rupture  and  hernia.  The  arbitration 
board  refused  compensation  on  the  ground  that  it  was  not  satisfied 
that  the  hernia  was  not  present  at  the  time  the  claimant  alleged 
that  he  strained  himself.  On  appeal,  the  court  held  that  there 
was  no  evidence  of  a  pre-existing  hernia,  nor  any  condition  which 
would  support  the  contention  that  a  hernia  had  existed  and  that 
it  was  aggravated  by  the  strain,  which  according  to  the  only 
evidence  given,  had  taken  place.  Compensation  was  allowed.98 

Where  a  brewery  assistant  strained  himself  while  lifting  a  cask, 
which  resulted  in  a  rupture  in  the  same  place  where  there  was 
a  rupture  some  years  previous,  the  court  held  that  this  new  rupture 
was  due  to  the  accidental  strain,  and  compensation  was  allowed." 

"Where  a  trial  court  found  that  an  employee  had  sustained  a 
femoral  hernia  as  the  result  of  an  accident,  and  that  the  injury  was 
permanent  unless  relieved  by  an  operation,  it  should  have  allowed 
compensation  for  a  permanent  injury,  with  leave  to  the  employer 
to  apply  for  a  modification  of  the  order  if  the  employee  unreason- 
ably refused  to  submit  to  an  operation.1 

An  employee  claimed  to  have  accidentally  received  a  strain  be- 
cause of  being  compelled  to  sustain  a  heavy  weight,  which  resulted 
in  a  left  inguinal  hernia.  At  the  time  he  made  no  claim  of  the 
injury,  as  he  felt  no  pain.  The  commission  briefly  reviewed  the 
evidence  and  dismissed  the  claim  on  the  grounds  that  a  traumatic 
hernia  is  accompanied  with  sufficient  pain  to  make  its  appearance 

C.  A.   543;    Scales   v.    West  Norfolk  Fanners'    Manure   &    Chem.     Co., 
1913,  W.  C.  &  Ins.  Rep.  165,  3  N.  C.  C.  A.  277. 

98.  Cbzoff  v.  Welsh,  18  Dom.  L.  R.  8,  28  W.  L.  R.  449,  1914,  14  N.  C. 
C.  A.  540. 

99.  Brown  v.  Kemp,  6  B.  W.  C.  C.  725,  14  N.  C.  C.  A.  535;    Boggelyn 
v.  Coronada  Hotel  &  Frankfort  Gen.  Ins.  Co.  1   Cal.  Ind.  Ace.    (part   2), 
276. 

1.  McNally  v.  Hudson  &  M.  R.  Co.,  S7  N.  J.  L.  455,  95  Atl.  122,  10  N. 
C.  C.  A.  185  Yukanovitch  v.  Mass.  Employees'  Ins.  Ass'n,  2  Mass.  Wkm. 
C.  C.  (1914),  787,  10  N.  C.  C.  A.  188,  Kline  v.  Indus.,  Comm.  101  Wash. 
365,  172  Pac.  343,  2  W.  C.  L.  J.  167. 

386 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   200 

known  to  the  workman  at  the  time  it  happens  and  a  complaint 
should  be  made  to  someone  at  the  time.- 

An  employee,  apparently  in  good  health,  suffered  from  a  strain 
while  lifting,  and  two  days  later  was  found  to  be  suffering  from 
a  rupture,  necessitating  an  operation,  which  resulted  in  death. 
The  medical  testimony  was  to  the  effect  that  the  rupture  was 
caused  by  the  lifting.  It  was  held  that  the  death  was  caused  by  an 
accident.8 

Straining,  blows  and  other  accidents  resulting  in  hernia,  or 
aggravating  previously  existing  conditions  of  hernia,  are  compen- 
sable.  Hernia  sometimes  presents  difficulties  of  evidence  as  to 
IN  cause,  and  calls  for  the  testimony  of  surgical  experts,  the  doubt 
l>ein«r  whether  the  hernia  is  traumatic  or  due  to  disease.4 

Claimant  sought  compensation  for  a  hernia,  alleged  to  have 
been  caused  by  an  injury  received  while  putting  back  the  cover 
of  the  furnace.  Medical  testimony  tended  to  show  that  the  rupture 
was  of  long  standing  and  that  there  was  no  indication  of  a  recent 
injury.  Compensation  was  denied  on  the  ground  that  the  burden 
of  showing  that  the  claimant  was  injured  by  accident,  was  not 
discharged.5 

When-  an  incomplete  hernia,  sustained  as  the  result  of  an  in- 
jury, was  rendered  complete  by  the  rough  handling  of  a  physician 
of  the  insurance  carrier,  it  was  held  that  the  resulting  disability 
was  due  to  an  injury.1"1 

A  fireman  who  suffered  a  hernia  as  the  result  of  a  fall,  was 

2.  "Wilson  v.  Allis  Chalmers  Co.,  Wis..  Ins.  Com..    3rd   Ann.  Rep.  70, 
(1914). 

3.  Poccardi  v.  Public  Serv.  Com.,  75  W.  Va,  542,  84  S.  E.  242,  8  N.  C. 
C.  A.  1065;  Voorbees  v.  Smith-Schoonmaker  Co.,  86  N.  J.  L.  500.  92  Atl. 
280,  7  N.  C.  C.  A.  646;  Andreini  v.  Cudahy  Packing  Co.  et  al.  1   Cal.  Ind. 
Ace.  Com.  Dec.  8,  6  N.  C.  C.  A.  390. 

4.  Ulrlch  v.  Lenox  Coat  Apron  and  Towel  Supply  Co.,  3  N.  Y.  St.  Dep. 
Rep.  380;   171  X.  Y.  App.  Div.  958,  Mooney  v.  Weber  Piano  Co.,  S.  D.  R. 
Vol.  5,  p.  396,  August  11.  1915;  172  N.  Y.  App.  Div.  917,  January  18.  1916. 

5.  Na*y  v.  Solvay  Process  Co.,  201  Mich.  158,  166  N.  W.  1033.  17  X.  C. 
C.  A.  252,  1  W.  C.  L.  J.  1049. 

6.  Clark  v.  Kennedy.  3  Cal.  I.  A.  C.  125. 

387 


§  204  WORKMEN'S  COMPENSATION  LAWS. 

allowed  compensation  during  actual  disability  and  for  disability, 
following  an  operation.7 

§  201.  Housemaid's  Knee. — A  plumber,  while  performing  his 
ordinary  duties,  was  compelled  to  rest  upon  his  knees  for  long 
periods  of  time,  which  caused  what  is  known  as  ''Housemaid's 
Knee,"  a  disease  of  the  knee  cap.  This  was  held  to  be  a  compen- 
sable  injury  under  the  Connecticut  act.8 

§  202.  Hydrocele. — Where  a  delivery  boy,  after  several  falls 
from  his  bicycle,  was  operated  upon  for  hydrocele,  the  existence  of 
Which  was  observed  by  the  physician  at  the  time  of  the  first 
accident,  the  physioiian  testifying  that  it  was  then  admitted  as 
having  existed  before  that,  the  proof  of  accidental  origin  of  the 
injury  was  insufficient,  and  compensation  was  refused.9 

Where  an  employee  slipped  and  fell  injuring  his  testicle  which 
developed  into  a  hydrocele,  he  sustained  a  compensable  injury 
under  the  Federal  Act.10 

§  203.  Hydronephrosis  of  Kidney. — A  grocer's  clerk  under- 
took to  lift  a  heavy  sack  of  coffee  and  injured  his  back,  necessitat- 
ing an  operation  for  a  condition  of  hydronephrosis  of  the  kidney. 
It  was  found  that  the  applicant  was  suffering  from  a  floating  kid- 
ney prior  to  the  injury  but  the  stricture  was  the  result  of  the  lift- 
ing and  caused  a  kink  in  the  ureter.  It  was  held  that  the  disability 
was  caused  by  the  accidental  injury  sustained  in  the  course  of  the 
employment.11 

§  204.  Hysterical  Blindness. — Claimant  sustained  a  blow  on 
the  head  which  impaired  his  vision,  and  for  a  long  time  after  the 
wound  in  the  head  had  healed  claimant  believed,  because  of  neu- 
rotic conditions,  that  his  eyesight  was  still  impaired,  It  was 

7..    O'Brien  v.  Holmes,  37  N.  J.  L.  J.  116.  See  also  6  N.  C.  C.  A.  390,  406. 

8.  Roberts  v.  Hitchcock  Hdw.  Co.,  1  Conn.  C.  Dec.  213. 

9.  Young  v.  Paris,  2  Cal.  I.  A.  C.  Dec.  518. 

10.  In  re  Mons  Anderson,  2nd  A.   R.  U.  S.  C.  C.  113. 

11.  Walters  v.  Brune,  2  Cal.  I.  A.  C.  D.  249,  10  N.  C.  C.  A.  770. 
388 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   205 

held  that  this  condition  was  traceable  to  the  accidental  injury, 
and  compeusable.12 

Where  a  girl  was  knocked  down  by  a  swinging  door  and  total 
blindness  resulted  from  a  disability  known  as  hysterical  blindness, 
the  injury  was  held  to  be  due  to  an  accident,  and  compensation 
for  total  disability  was  awarded.13 

That  the  workman,  but  for  want  of  sufficient  will  power,  could 
have  thrown  off  the  condition  of  hysterical  blindness  and  neurosis 
caused  by  the  injury,  did  not  deprive  him  of  his  right  to  compen- 
sation.14 

§  205.  Hysterical  Paralysis. — An  axe  fell  45  feet  upon  the 
right  shoulder  of  applicant  inflicting  a  ghastly  wound.  Prompt 
medical  aid  effected  a  healing  of  the  wound,  but  the  applicant 
was  unable  to  use  his  arm,  and  professed  a  total  paralysis  of  the 
arm  and  partial  paralysis  of  the  side  although  there  was  no  physical 
derangement  apparent.  The  accident  board  said,  "While  there 
is  some  difference  of  opinion  among  the  physicians  testifying 
as  to  whether  or  not  the  paralysis  of  applicant's  arm  is  wholly 
functional  and  due  to  hysteria,  all  agree  that,  up  to  the  time  of 
giving  their  testimony,  applicant  Santini  has  suffered  a  total 
paralysis  of  the  right  arm  and  is  unable  to  perform  manual  labor, 
and  that  he  is  not  a  malingerer.  The  difference  between  a  malinger- 
er and  a  hysteric  is  that  the  malingerer  claims  disability  when  he 
knows  he  has  no  right  to  do  so,  and  the  victim  of  hysteria  claims 
disability  in  the  unshakable  conviction  that  he  is  disabled.  In  the 
language  of  Dr.  McClenahan,  an  excellent  authority  on  the  subject, 
'His  injury  is  just  as  real  to  him  as  though  it  actually  existed." 
Compensation  was  awarded  for  total  disability." 

Where  the  disability  immediately  caused  by  an  accident  had 
been  cured,  but  a  condition  of  hysterical  paralysis  and  nervous 
spasm,  amounting  to  a  trumatic  neurosis,  existed,  compensation  was 

12.  Hurlowske  v  .American  Brass  Co.,  1  Conn.  W.  C.  D.  6. 

13.  Boyd  v.  Y.  M.  C.  A.,  3  Cal.  Ind.  Ace.  62. 

14.  In  Re  Hunnewell,  220  Mass.  351,  107  N.  E.  934. 

15.  Santini  v.  Mammoth  Copper  Mining  Co.,   1  Cal.   Industrial  Ace. 
Comm.  Dec.  161,  11  N.  C.  C.  A.  32,  note. 

389 


§  206  WORKMEN'S  COMPENSATION  LAWS. 

awarded  pending  disability,  upon  condition  that  if  the  sufferer 
should  refuse  hospital  treatment  at  expense  of  the  employer,  com- 
pensation payments  should  be  discontinued.16 

Hysterical  neurosis  which  comes  as  a  result  of  an  injury,  en- 
titles the  one  injured  to  compensation  during  the  continuance  of 
the  disability  arising  from  that  cause.17 

A  woman,  in  an  effort  to  avoid  injury  from  a  broken  «pulley 
flying  from  a  machine,  strained  her  left  leg  and  fell  against  a 
machine,  causing  her  to  suffer  from  traumatic  neurasthenia. 
It  was  held  that  even  though  this  disease  exists  only  in  the  mind  of 
the  sufferer  as  a  hysterical  condition  she  had  no  power  to  prevent 
this  mental  condition,  a  nd  lis  entitled  to  compensation1  fotr  the  re- 
sults of  the  accidental  injury.18 

Claimant  received  personal  injuries  in  an  automobile  accident 
arising  in  the  course  of  his  employment,  and  developed  traumatic 
neurosis,  resulting  in  loss  of  will  power.  This  was  held  to  be  a 
compensable  injury.19 

§  206.  Infection. — Where  an  employee's  work  caused  his 
hands  to  become  chapped  and  to  bleed  and  while  his  hand  was  in 
this  condition  it  became  infected,  the  court  held  that  it  was 
not  necessary  to  determine  the  exact  source  of  the  microbes  that 
entered  the  hand,  it  being  sufficient  that  the  poisoned  hand  results 
from  the  injury,  through  the  crack  opening  and  becoming  pois- 
oned.20 

Claimant  was  employed  as  a  strainer  of  mahogany.  Through  the 
use  of  aniline  dye  his  hands  became  cracked,  and  infection  re- 
sulted, Reversing  the  action  of  the  board,  the  court  said,  "If 
the  injury  to  the  claimant  accurred  by  reason  of  the  character 
of  his  employment,  he  is  precluded  from  recovery,  because  the  act 

16.  Ream  v.  Sutter  Butte  Canal,  11  N.  C.  C.  A.  1048,  2  Gal.  Ind.  Ace. 
Comm.  187. 

17.  Linser  v.  Consumers  Ice  and  Coal  Co.,  Mich.  Wkm.  Comp.  Cases 
(1916),  61. 

18.  Lucy  Brewster  v.  W.  H.  Hemingway  &  Sons  Soap    Co.,  1  Conn. 
Comp.  Dec.  128. 

19.  Wm.  R.  Smith  v.  H.  I.  Smith,  1  Conn.  Comp.  Dec.  628. 

20.  Saddington  v.  Inslip  Iron  Co.,  Ltd.,  1915,  W.  C.  &  Ins.  Rep.  46,  17 
N.  C.  C.  A.  881;    State  Industrial  Comm.  v.  Tolhurst  Mach.  Co.,  184  N.  Y. 
S.  608,  7  W.  C.  L.  J.  136. 

390 


PERSONAL  INJURY  OR   DEATH   BY  ACCIDENT.  §    206 

does  not  provide  compensation  for  those  suffering  injury  from 
occupational  diseases.  The  claimant  has  failed  to  show  that  the 
infection  resulted  from  an  accident."21 

Claimant,  who  submitted  to  vaccination  against  her  will,  develop- 
ed acute  mastoiditis,  lymphatic  infection.  In  reversing  an  award 
in  her  favor,  the  court  said:  "It  seems  quite  clear  that  claimant 
lias  failed  to  show  any  connection  between  her  employment  and 
the  infection  following  vaccination.  There  was  nothing  in  her 
employment  which  made  her  more  susceptible  to  the  reception 
of  the  prom i  tli;m  if  she  wnv  elsewhere.  The  risk  of  infection  was 
such  ;ni<l  such  only  as  that  to  which  the  general  public  was  ex- 
posed Chiiniant's  injury,  if  it  can  be  traced  to  the  vaccintion  arose 
not  out  of  her  employment,  but  through  the  active  agency  of  the 
Detroit  board  of  health,  which  for  the  benefit  of  claimant  as  well 
as  the  public  generally  requested  her  to  submit  to  the  operation."1 

Claimant  was  compelled  to  wade  through  impure  flood  water.  At 
the  time  an  old  injury  to  his  foot  had  not  healed,  and  infection 
followed,  rendering  necessary  the  amputation  of  his  foot.  It  was 
contended  that  the  injury  was  not  the  result  of  an  accident,  but 
the  court  held  that  "the  infection  of  an  existing  wound  by  con- 
tact with  foreign  matter  seems  to  be  within  the  ordinary  meaning 
of  the  term,  'an  unlocked  for,  untoward  event  which  is  not  ex- 
pected or  designed."'23 

An  iron  worker  injured  his  finger,  and  about  a  week  later  suf- 
fered a  second  injury  to  the  same  finger,  and  later  blood  poison 
caused  his  death.  The  evidence  tended  to  prove  that  the  injury 
did  not  break  the  skin,  but  the  deceased  had  pricked  it  with  a 
pin.  The  court,  in  affirming  an  award,  said  that  the  conflicting 
evidence  would  support  a  reasonable  inference  that  an  open  wound 
was  caused  by  one  of  the  injuries  and  that  blood  poisoning  result- 
ed therefrom,  rather  than  from  a  self-inflicted  wound.24 

21.  Jerner  v.  Imperial  Furniture  Co.,  200  Mich.  265,  166  N.  W.  943,  17 
N.  C.  C.  A.  344,  1  W.  C.  L.  J.  1066. 

22.  Krout  v.  J.  L.  Hudson  Co.,  200  Mich.  287,  166  N.  W.  848,  16  N.  C.  C. 
A.  881. 

23.  Monson  v.  Battelle,  102  Kan.  208,  170  Pac.  801,  17  N.  C.  C.  A,  878. 

24.  Bushe  v.  Whitehead  A  Kales  Iron  Works.  194  Mich.  413,  160  N.  W. 
657,  15  N.  C.  C.  A.  586;    Kinney  v.  Cadillac  Motor  Car  Co.,  —  Mich.  — , 

391 


§  206  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  employee  accidentally  forced  a  splinter  into  his  hand 
and  blood  poisoning  ensued,  the  arbitration  board  found  that  the 
blood  poisoning  was  caused  by  infection  entering  through  the 
wound  made  by  the  splinter,  and  therefore  compensable.25 

Deciedent  contracted  ivy  poisoning  while  mowing  weeds  on  de- 
fendants right  of  way.  This  later  developed  into  blood  poisoning 
and  acute  congestion  of  the  lungs,  from  which;  he  died.  This 
was  held  to  be  an  accidental  injury  and  compensable.26 

Where  an  employee  injured  his  hand  while  using  a  wheelbarrow 
and  infection  followed,  causing  blood  poisoning,  and  later  the 
employee  became  insane,  it  was  held  that  the  insanity  was  the 
result  of  the  accidental  injury,  and  compensation  was  allowed.27 

A  coal  miner,  who  had  to  kneel  in  the  course  of  his  work,  found 
that  a  small  piece  of  coal  had  worked  itself  into1  his  knee,  which 
later  caused  blocdpoisoning,  resulting  in  death.  This  was  held 
to  be  an  accident,  within  the  meaning  of  the  English  Workmen's 
Compensation  Act.28 

Where  compensation  was  sought  for  death  from  blood  poisoning, 
alleged  to  have  been  caused  by  vaccination,  which  developed  an 
abscess  about  the  knee,  compensation  was  denied,  because  it  was 
not  shown  that  the  infection  of  the  knee  joint  would  result  from 
the  vaccination  on  the  arm.29 

After  an  employee  had  been  pulling  a  chain  he  experienced  sharp 
stinging  feeling  at  the  base  of  the  middle  finger.  Later  blotad 

165  N.  W.  651,  15  N.  C.  C.  A.  586;  Dove  v.  Alpena  Hyde  and  Leather  Co., 
198  Mich.  132,  164  N.  W.  253,  15  N.  C.  C.  A.  586;  Blaes  v.  Dolph,  195 
Mich.  137,  161  N.  W.  885,  15  N.  C.  C.  A.  587. 

25.  McDonald  v.  Fidelity  &  Deposit  Co.  of  Maryland,  2  Mass.  Wkm.  U. 
C.  529,  11  N.  C.  C.  A.  495;    Marinelli  v.  Contractors  Mut.  Liab.  Ins.  Co., 

I  Mass.  Wkm.  C.  C.  414,  11  N.  €.  C.  C.  A.  496;    In  re  Robert  L.  Hawkins, 
2nd  A.  R.  U.  S.  C.  C.  103. 

26.  Plass  v.  Central  N.  Eng.  R.  R.  Co.,  169  N.  Y.  App.  Div.  826,  155 
N.  Y.  S.  854,  11  N.  C.  C.  A.  498. 

27.  Whalen  v.  U.  S.  Fidelity  &  Guarantee  Co.,  2  Mass.  Wkm.  C.  C.  318, 

II  N.  C.  C.  A.  498;  Chiesa  v.  U.  S.  Crushed  Stone  Co.  1  Bull.  111.  I.  Bd.  82 
11  N.  C.  C.  A.  504. 

28.     Thompson  v.  Ashington  Coal  Co.,  3  B.  W.  C.  C.  21,  11  N.  C.  C.  A. 
505. 

29.  In  Re  Miller,  Ohio  Ind.  Com.  No.  78789,  Aug.  16,  1915,  11  N.  C.  C.  A. 
506. 

392 


PERSONAL  INJURY  OR   DEATH  BY  ACCIDENT.  §    206 

poisoning  resulted  and  developed  into  a  retrocecal  abscess,  from 
which  the  patient  died.  The  mother  of  deceased  contended  that 
the  retrocecal  abscess  was  caused  by  metastatic  infection  from  the 
abscess  in  the  hand,  and  that  death  was  proximately  caused  by 
accident.  There  was  no  direct  evidence  of  any  accident  having 
happened  to  deceased.  That  a  sliver  of  steel  from  the  cable  entered 
his  hand  was  a  mere  matter  of  conjecture  upon  which  the  court 
would  not  base  an  award.80 

Where  disability  was  aggravated  by  conscientious,  but  improper, 
treatment  given  the  injury  by  the  injured  employee  herself,  and 
infection  resulted  which  would  have  been  avoided  had  the  employer 
promptly  furnished  medical  services,  the  employer  was  liable  for 
medical  expenses  consequent  upon  the  aggravation.81 

An  employee  worked  kneeling  while  painting  a  deck,  and  bursitis 
and  infection  developed  in  his  knee,  and  medical  experts  testified 
that  the  injury  could  only  come  from  accident  in  such  employment, 
then,  although  no  accident  can  be  definitely  proved,  the  cause  of 
injury  was  sufficiently  connected  with  the  employment  as  an  acci- 
dental cause.82 

Where  an  employee  received  a  cut  on  his  hand,  and  later  in- 
fection developed  in  his  shoulder,  the  court  held  that  the  infection 
in  the  shoulder  was  traceable  to  the  original  injury  to  the  hand, 
which  might  readily  produce  the  chain  of  disorders  which  eventually 
resulted  in  death.88 

An  employee  suffered  an  injury  consisting  of  a  fracture  to  the 
femur."  He  was  treated  properly,  but  blebs  followed,  and  these 
blebs  becama  infected  and  ulcerated.  After  a  lapse  of  three 
months  a  deep  seated  infection  set  in.  Before  the  blebs  and  re- 
sulting ulcers  disappeared,  however,  several  months  had  intervened 
and  the  tissues  of  the  lower  leg  had  become  weakened  and  the 
skin  tender.  The  lapse  in  time  militates  against  the  theory  that 

30.  Olney  v.  West  Side  Lbr.  Co.,  2  Cal.  Ind.  Ace.  Comm.  272,  11  N.  C.  C. 
A.  508;    Beckster  v.  Pattison,  1  Conn.  C.  Dec.  61. 

31.  Forgues  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  1038. 

32.  Porter  v.  Anderson,  1  Cal.  I.  A.  C.  D.  608;    Johnson  v.  Sudden  £ 
Christenson.  1  Cal.  I.  A.  C.  D.  422. 

33.  Engstrom  v.  L.  Candee  &  Co.;     1  Conn.  Comp.  Dpc.  691;     Foly  v. 
A.  T.    Demarest  and  Co*  1  Oonn.  C.  D.  661. 

393 


§  206  WORKMEN'S  COMPENSATION  LAWS. 

the  deepseated  infection  resulted  from  the  injury,  while  the  weak- 
ening of  the  tissues  above  mentioned  would  tend  to  establish  the 
existence  of  such  relation.  The  deep  seated  infection  was  held 
to  be  due  to  the  accidental  injury,  and  compensable.34 

An  infection  of  the  hand  and  a  secondary  infection  of  the  leg, 
resulting  from  an  abrasion  of  the  skin  and  the  accidental  introduc- 
tion of  a  foreign  substance,  is  an  injury  within  the  act.35 

Applicant  was  denied  compensation  for  an  amputated  finger, 
which  amputation  was  alleged  to  have  been  made  necessary  as  the 
result  of  a  burn,  suffered  while  striking  a  match  to  light  the  gas 
for  a  body  ironer,  in  the  employer's  laundry.  The  wound  after- 
ward became  infected.  The  evidence  was  held  sufficient  to  es- 
tablish the  fact  that  the  injury  to  the  finger  was  due  to  an  accident, 
which  occurred  in  the  course  of  employment.36 

An  employee  suffered  an  injury  to  his  foot,  which  produced  such 
a  physical  condition  that  it  was  susceptible  to  infection  from  a 
slight  injury,  and  thereafter,  probably  from  chafing  of  his  shoe, 
a  break  of  the  skin  was  caused,  which  resulted  in  blood  poisoning 
and  death.  This  was  held  to  be  a  compensable  injury.37  But  abra- 
sions of  the  feet  caused  solely  from  the  rubbing  of  ill  fitting  shoes 
are  not  compensable  injuries,38  unless  the  nature  of  the  employ- 
ment subjects  the  employee  to  unusual  risks  of  injuries  from 
shoes,  as  hiking.39 

Where  a  boy  riding  a  bicycle  was  injured  in  his  hip  by  a  fall 
from  the  wheel  and  infection  developed,  causing  long  disability, 
it  was  held  that  the  injury  was  due  to  traumatism  and  not  to  an 
infectious  disease  which  the  boy  had  suffered  four  years  previous- 
ly.40 

34.  Frank  Melia  v.  The  Race  Brook  Country  Club  &  The  Aetna  Life 
Ins.  Co.,  1  Conn.  C.  Dec.  549. 

35.  In  Re  claim  of  L.  B.  Green,  Op.  Sol.  Dep.  C.  &  L.,  p.  199. 

36.  Wells  v.  Metropolitan  Laundry  Co.,  1  Cal.  Ind.  A.  C.  part  2,  66; 
Netherland  v.  Contra  Costa  Const.  Co.,  1  Cal.  I.  A.  C.  part  2,  440. 

37.  Maroney    v.    Gilbert    Mfg.  Co.,    Conn.,    Comp.    Com.    Third    Dist., 
Beers,   Com'r,   Feb.  17,    1917   (Unreported). 

38.  In  re  Wallace  D.  Westfall,  2nd  A.  R,  U.  S.  C.  C.  91;    In  re  Chas.  A. 
Chapman,  2nd  A.  R.  U.  S.  C.  C.  92. 

39.  In  re  Walter  Enborn,  2nd  A.  R.  U.  S.  C.  C.  243. 

40.  Lannan  v.  Simpkins,  3  Cal.  I.  A.  C.  127. 
394 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   206 

Where  an  employee  did  not  regain  normal  health  but  continued 
in  a  weak  and  debilitated  condition  after  recovering  from  the 
direct  effects  of  an  accident,  and  died  thirteen  months  thereafter 
from  bronchitis  following  influenza,  it  was  held  that  the  bronchi- 
tis proved  fatal  because  of  the  condition  to  which  the  accident  had 
reduced  the  deceased,  and  that  death  resulted  from  the  injury.41 

Where  a  workman  had  returned  to  work  after  an  operation,  with 
orders  not  to  strain  himself,  while  working  at  the  lever  of  a  machine, 
and  he  was  later  discovered  talking  to  a  foreman,  while  blood  was 
streaming  from  the  wound,  after  which  septic  poisoning  followed, 
resulting  in  the  man's  death,  in  the  absence  of  direct  evidence 
as  to  what  had  happened,  the  court  drew  the  inference  that  the 
wound  had  burst  open  through  the  strain  of  working  the  lever, 
and  awarded  compensation.42 

An  employee  came  in  contact  with  a  live  electric  wire,  which 
caused  him  to  fall  from  a  ladder,  seriously  injuring  him.  Typhoid 
infection  developed,  and  resulted  in  death.  Medical  testimony 
showed  that  deceased  was  very  susceptbile  to  infection,  his  system 
not  being  able  to  withstand  an  attack  of  that  disease  by  reason 
of  the  fact  that  he  had  never  recovered  from  the  effects  of  the  in- 
jury. Compensation  was  awarded.43 

Where  the  wounded  wrist  of  an  employee  had  practically  healed 
when  he  engaged  in  a  boxing  match,  which  stirred  the  bacteria, 
causing  the  wrist  to  become  infected,  finally  resulting  in  the  loss 
of  the  bones  of  the  hand  and  wrist,  the  court  held  that  the  infection 
was  not  due  to  the  accidental  injury.44 

An  employee,  engaged  in  shaving  and  painting  poles,  bruised 
the  flesh  and  knocked  a  small  piece  of  skin  from  his  hand.  He 
continued  work  for  three  or  four  days  until  he  was  unable  to  work 
because  of  blood  poisoning,  produced  by  germs  entering  the  flesh 
through  the  break  in  the  skin.  It  was  impossible  to  ascertain  the 

41.  Thoburn  v.  Bedlington  Coal  Co.,  5  B.  W.  C.  C.  128;   Re  L.  P.  Perron, 
Op.  Sol.  Dep.  C.  &  L.,  pg.  579. 

42.  Groves  v.  Bu  rough es  &  Watts,  4  B.  W.  C.  C.  185. 

43.  Re  J.  B.  Atkinson,  Op.  Sol.  Dep.  C.  &   L.    pg.   197. 

44.  Kill  v.  Industrial  Com.  of  Wis.,  160  Wis.  549,  152  N.  W.  148,  L.  R. 
A.  1916A,  14. 

395 


§  206  WORKMEN'S  COMPENSATION  LAWS. 

source  of  the  germs  or  when  they  gained  entrance  to  the  wound. 
The  time  which  elapsed  between  the  abrasion  and  the  beginning 
of  blood  poisoning  was  the  usual  period  of  infection  for  this  disease. 
The  court  held  that  the  disability  was  due  to  the  injury.45 

Where  infection  formed  in  a  laceration  on  the  head  of  a  subway 
worker,  caused  by  the  falling  of  a  beam,  compensation  was  allow- 
ed.46 

Compensation  was  allowed  for  death  caused  by  tetanus,  as  the 
result  of  a  wound  in  the  foot  by  a  rusty  nail.47 

Compensation  was  denied,  because  of  lack  of  evidence,  for 
the  death  of  claimant's  husband,  alleged  to  have  been  caused  by 
blood  poisoning,  due  to  rupture  of  the  mucous  membrane  inside 
of  the  nose,  permitting  the  entrance  of  germs.  The  rupture  having 
been  caused  by  an  accidental  blow  from  a  container.48 

A  bookeeper  received  a  slight  scratch,  and  three  days  later 
the  pain  became  very  great  from  the  infection  which  set  in.  It 
was  held  that  this  was  an  accidental  injury.49 

Compensation  was1  denied  in  a  claim  for  infection  alleged  to 
have  resulted  from  an  injury  caused  by  a  chapping  of  an  em- 
ployee's hands  as  a  result  of  working  with  his  hands  in  staining 
furniture  with  an  analine  dye  solution.  It  was  held  to  be  an  oc- 
cupational disease,  not  an  accidental  injury.50 

Where  an  employee,  while  helping  a  fellow  employee  after 
working  hours  to  install  the  plant  of  his  employer,  received  a 
slight  injury  to  his  thumb,  which  developed  into  bloodpoisoning, 
finally  resulting  in  death  from  acute,  inflammatory  rheumatism, 
the  evidence  was  held  to  sustain  a  finding  that  death  resulted 

45.  Great  W.  Power  Co.  v.  Pillsbury,  171  Cal.  79,  151  Pac.  1136,  L.  R. 
A.  1916  A.  281,  11  N.  C.  C.  A.,  493. 

46.  Pelctreck  v.  Degnon  Cont.  Co.  S.  D.  R.  Vol.  6,  pg.  394. 

47.  Putnam  v.   Murray,  174  A  pp.  Div.  N.  Y.  720,   160  N.  Y.   S.    811; 
Marstus  v.  Employers  Liab.    Ass.,  1  Cal.  I.  A.  C.  Part  2,  360. 

48.  Partridge  v.  Norwich  Pharmacial  Co.,  S.  D.  R.  Vol.  6,  pg.  336. 

49.  Jameson  v.  Bush,  1  Cal.  I.  A.  C.  Part  2,  507;  Dre'yer  v.  G.  W.  Power 
Co.,  1  Cal.  I.  A.  C.  Part  2,  489. 

50.  Jerner  v.  Imperial  Furniture  Co.,  200  Mich.  265,  166  N.  W.  943r 
17  N.  C.  C.  A.  345;  Boyd  v.  Travelers  Ins.  Co.,  1  Mass.  I.  A.  Bd.  180. 

396 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   207 

from  an  accidental  injury  received  in  the  course  of  the  employ- 
ment.51 

A  workman  in  a  city  park  sustained  a  scratch  on  the  back  of  his 
hand,  which  became  infected,  and  caused  his  death  from  blood- 
poisoning.  Although  there  was  no  evidence  to  indicate  in  what 
manner  he  was  injured  there  was  evidence  that  the  injury  occur- 
ed  while  he  was  at  work,  and  the  superior .  court  sustained  an 
award  in  the  widow's  favor.52 

Where  compensation  was  sought  for  the  death  of  an  employee 
due  to  infection  of  the  kidneys,  and  it  was  shown  that  an  accident 
had  occurred  which  affected  the  kidneys,  but  all  the  medical  evi- 
dence was  to  the  effect  that  the  infection  could  not  have  resulted 
from  the  accident  but  had  its  origin  in  the  insertion  of  a  pessary, 
which  was  unsanitary,  it  could  not  be  said  that  death  resulted 
from  an  accident.58 

§  207.  Influenza. — Influenza  contracted  as  the  result  of  a 
weakened  vitality  following  an  injury  is  compensable  under  the 
Pennsylvania  Act.64 

Under  the  construction  placed  upon  the  word  injury  as  used 
in  the  California  Act,  influenza,  contracted  by  a  hospital  employee 
in  the  course  of  his  employment,  and  not  by  any  bodily  injury 
through  violence  is  compensable.  The  court  said:  "Two  grounds 
are  urged  why  the  award  is  invalid.  The  first,  and  more  important, 
is  that  the  awarding  of  compensation  for  death  by  disease,  the 
origin  of  which  was  not  a  bodily  injury  suffered  through  violence, 
is  beyond  the  power  of  the  commission. 

"The  decision  on  the  first  question  presented  turns  on  the 
meaning  to  be  given  to  the  word  'injury'  as  used  in  article  20, 
Section  21,  of  our  Constitution.  The  se'ction  has  been  amended 
since  Slattery's  death,  but  at  that  time  read: 

51.  Perdew  v.  Nufler  Cedar  Co.,  201  Mich.  520,  167  N.  W.  868.  16  N.  C. 
C.  A.  921,  2  W.  C.  L.  J.  313. 

52.  In  re    Bean,  227  Mass.  558,  116  N.  E.  826. 

53.  Kade  v.  Greenhut,  — ,  App.  Div.  — ,  186    N.  Y.  S.  9,    7    W.  C.   L. 
J.  232. 

54.  Dubluskey  v.  Phil,  ft  Reading  Coal  ft  Iron  Co.— Pa.— ,  1921,  112 
All.  745. 

397 


§  207  WORKMEN'S  COMPENSATION  LAWS.. 

'The  Legislature  may  by  appropriate  legislation  create  and  en- 
force a  liability  on  the  part  of  all  employers  to  compensate  their 
employees  for  an  injury  incurred  by  the  said  employees  in  the 
course  of  their  employment,  irrespective  of  the  fault  of  either 
party.'  % 

The  word  'injury'  as  so  used  means,  of  course,  only  bodily 
injury,  and  the  position  of  the  city  is  that  it  means  only  bodily 
injury  suffered  by  or  resulting  from  violence,  while  the  position 
of  the  commission  is  that  it  covers  any  harmful  effect  upon  the 
body,  whether  by  violence  or  by  disease.  The  word  is  frequently 
used  in  both  the  broader  and  the  more  limited  sence.  In  common 
usage,  it 'has  the  more  general  meaning.  Thus,  Webster  defines 
'injury'  as:  (1)  'Any  -wrong,  damage,  or  mischief  done  or 
suffered;'  as  (2)  'a  source  of  harm;'  or  as  (3)  'a  wrong  or 
damage  done  to  another."  On  the  other  hand,  when  personal 
injuries  are  spoken  of,  there  are  apt  to  be  meant  only  bodily 
injuries  suffered  through  violence  in  some  form  or  to  some  extent, 
traumatic  injuries.  The  exact  meaning  of  the  word  'injury'  as 
used  in  Workmen's  Compensation  Acts,  or  in  a  similar  connec- 
tion, has  come  before  the  courts  for  consideration  on  numerous  oc- 
casions, and  their  rulings  are  by  no  means  harmonious.  On  the 
one  hand,  there  are  a  number  of  cases  holding  that  word  has  the 
more  limited  meaning.  An  example  of  this  is  Linnane  v.  Aetna 
Brewing  Co.,  91  Conn.,  158,  99  Atl.  507,  L.  R.  A.  1917D,  77,  where 
it  was  held  that  the  phrase  personal  injury  did  not  include  injury 
or  harm  suffered  by  disease,  and  that  compensation  was  not  allow- 
able for  the  death  of  an  employee  by  pneumonia  contracted  as 
the  result  of  unusual  exposure  and  exhaustion  in  the  course  of  his 
employment.  Other  examples  along  the  same  line  are  Industrial 
Accident  Com.,  etc.,  v.  Brown,  92  Ohio,  309,  110  N.  E.  744,  L. 
R.  A.  1916B,  1277 ;  Adams  v.  Acme,  etc.,  Co.,  182  Mich.  157,  148 
N.  W.  485,  L.  R.  A.  1916A,  283,  Ann.  Gas  1916D,  689 ;  Richardson 
v.  Greenburg,  188  App.  Div.  248,  176  N.  Y.  Supp.  651 ;  Liondale, 
etc.,  Works  v.  Riker,  85  N.  J.  Law,  426,  89  Atl.  929. 
•  "On  the  other  hand,  there  are  large  number  of  decisions  which 
adopt  the  broader  meaning,  and  hold  that  compensation  is  allow- 
able for  the  injury  or  harm  done  by  disease,  although  the  disease 
398 


PERSONAL  INJURY   OR   DEATH   BY  ACCIDENT.  §    207 

is  not  contracted  as  the  result  of  any  violence  whatever  in  the 
ordinary  sense  of  that  word. 

"Under  the  English  Workmen's  Compensation  Act,  compensa- 
tion is,  or  was  allowable  only  for  'personal  injury  by  accident,' 
a  much  more  limited  expression  than  that  found  in  our  constitu- 
tional provision,  and  one  in  which  it  might  well  be  thought  there 
was  some  implication  of  an  injury  by  violent  external  means. 
Nevertheless,  the  House  of  Lords  held,  in  Brinton's  v.  Turvoy,  L. 
R.  Ap.  Cases  (1905)  230,  that  compensation  was  allowable  for  the 
injury  sustained  by  a  workman  from  anthrax  contracted  by  him 
in  the  handling  of  infected  wool;  there  being  no  violence  other 
than  bacteria  from  the  wool  found  their  way  into  his  system. 

"Similarly,  it  as  held  in  Scott  v.  Pearson,  L.  R.  2  K.  B.  Div. 
(1916)  61,  that  compensation  was  allowable  for  cattle  ringworm 
contracted  by  an  employee  by  coming  in  contact,  not  violent, 
with  infected  calves. 

"Along  the  same  line,  the  House  of  Lords  held  in  Glasgow  Coal 
Co.  v.  Welsh,  L.  R.  2  Ap.  Cases  (1916)  1,  that  a  miner  was  en- 
titled to  compensation  for  rheumatism  contracted  by  him  as  a 
result  of  his  being  required  to  stand  for  a  number  of  hours  in 
cold  water  to  bale  out  the  mine  pit. 

"The  Indiana  Workmen's  Compensation  Act,  like  the  English 
Act,  allows  compensation  for  'personal  injury  or  death  by  acci- 
dent.' But  in  United  Paperboard  Co.  v.  Lewis  (Ind.  App.)  117 
N.  E.  276,  Compensation  was  allowed  to  a  workman  for  acute 
nephritis  contracted  by  him  through  his  being  required  to  work 
for  several  hours  in  heated  paper  pulp.  The  following  portion 
of  the  opinion  is  pertinent  here. 

'The  courts  have  also  differed  as  to  whether  a  disease  follow- 
ing an  employment  should  be  considered  an  injury  by  accident 
within  the  meaning  of  such  acts.  Tn  the  various  decisions  on  this 
subject  it  is  generally  recognized  that  diseases  are  of  two  classes : 
First,  the  so-called  industrial  or  occupational  diseases,  which  are 
the  natural  and  reasonably  to  be  expected  results  of  a  workman 
following  a  certain  occupation  for  a  considerable  period  of  time; 
second,  diseases  which  are  the  result  of  some  unusual  condition 
of  the  employment.  The  first  class  is  illustrated  by  lead  poisoning 
and  the  second  by  pneumonia  following  an  enforced  exposure.  As 

399 


§  207  WORKMEN'S  COMPENSATION  LAWS. 

a  rule  such  industrial  or  occupational  disease  are  not  considered  as 
injuries  by  accident  and  in  the  absence  of  special  statutory  pro- 
vision compensation  is  not  allowed  therefor.  On  the  other  hand, 
it  is  generally  accepted  that  a  disease,  which  is  not  the  ordinary 
results  of  an  employee's  work,  reasonably  to  be  anticipated  as  a 
result  of  pursuing  the  same,  but  contracted  as  a  direct  result  of 
unusual  circumstances  connected  therewith,  is  to  be  considered  an 
injury  by  accident,  and  comes  within  the  provisions  of  acts 
providing  for  compensation  for  personal  injury  so  caused-  citing 
a  long  list  of  authorities).' 

"In  Hurle's  Case,  217  Mass.  223,  104  N.  E.  336,  L.  R.  A.  1916A, 
279,  Ann.  Gas.  1915  C,  919,  a  workman  employed  to  tend  furnaces 
for  making  gas  claimed  compensation  for  the  loss  of  his  sight  due 
to  an  acute  attack  of  optic  neuritis  induced  by  poisonous  gases 
from  the  furnaces  to  which  his  work  constantly  exposed  him.  The 
Massachusetts  act  allowed  compensation  for  'personal  injury' 
without  requiring  that  it  be  by  accident,  and  the  question  dis- 
cussed by  the  court  was  asi  to  whether  the  case  was  one  of  a  'per- 
sonal injury.'  The  discussion  concludes  thus: 

'The  learned  counsel  for  the  insurer  in  his  brief  had  made  an 
exhaustive  and  ingenious  analysis  of  the  entire  act  touching  the 
words  'injury'  or  'injuries,'  and  has  sought  to  demonstrate  that  it 
cannot  apply  to  an  injury  such  as  that  sustained  in  the  case  at 
bar.  But  the  argument  is  not  convincing.  It  might  be  decisive  if 
'accident"  had  been  the  statutory  word.  It  is  true  that  in  inter- 
preting a  statute  words  should  be  construed  in  their  ordinary 
sense.  Injury,  however,  is  usually  employed  as  an  inclusive  word. 
The  fact  remains  that  the  word  'injury,'  and  not  'accident,'  was 
employed  by  the  Legislature  throughout  this  act.  It  would  not 
be  accurate,  but  lax,  to  treat  the  act  as  if  it  referred  merely  to 
accidents. ' 

"In  State  v.  Trustee,  138  Wis.  133,  119  N.  W.  806,  20  L.  R. 
A.  (N.  S.)  1175,  the  widow  and  children  of  a  policeman  dying 
from  pneumonia  contracted  by  exposure  in  the  course  of  his 
duty  made  application  for  a  pension  under  a  statute  which 
provided  for  a  pension  to  the  dependents  of  a  policeman  "in» 
jured"  in  the  performance  of  his  duty.  It  was  contended  that 

400 


PERSONAL  INJURY  OR  DKATII    BY  ACCIDENT.  §    207 

by  injury  was  not  meant  disease  merely,  and  upon  this  point  the 
courst  said  (138  Wis.  135,  119  N.  W.  807,  20  L.  B.  A.  (N.  S.) 
1175) : 

'The  word  'injury,  in  ordinary  modern  usage,  is  one  of  very 
broad  designation.  In  the  strict  sense  of  the  law,  especially  the 
common  law,  its  meaning  corresponded  with  its  etymology.  It 
meant  a  wrongful  invasion  of  legal  rights,  and  was  not  concerned 
with  the  hurt  or  damage  resulting  from  such  invasion.  It  ia 
thus  used  in  the  familiar  law  phrases  daminum  absque  injuria.  In 
common  parlance,  however,  it  is  used  broadly  enough  to  cover  both 
the  damnurn  and  the  injuria  of  the  common  law,  and  indeed  is 
more  commonly  used  to  express  the  idea  belonging  to  the  former 
word,  namely  the  effect  on  the  recipient  in  the  way  of  hurt  or 
damage,  and  we  cannot  doubt  that  at  this  day  its  common  and 
approved  usage  extends  to  and  includes  any  hurtful  or  damaging 
effect  which  may  be  suffered  by  any  one.  Hence,  unless  teome 
reason  to  the  contrary  is  presented,  it  should  be  so  understood  in 
these  statutes..  Subdivision  1,  Section  4971,  Stats.  (1898).  The 
respondent  contends  that,  nevertheless,  the  word  should  be  limited 
to  the  results  of  external  violence.  By  itself  the  word  'injury' 
or  'injure'  has  no  more  application  to  the  result  of  violence  than 
to  the  result  of  any  other  injurious  influence.  A  disease  resulting 
from  negligence  of  a  physician,  in  failing  to  give  treatment  is 
just  as  much  an  injury  in  common  phrase  as  if  it  resulted  from 
affirmative  maltreatment  of  external  violence.' 

"The  following  cases,  in  none  of  which  was  the  element  of  vio- 
lence present,  are  along  the  same  line :  Alloa  Coal  Co.  v.  Drylie, 
6  B.  W.  C.  C.  398  (death  by  pneumonia)  ;  Hood  v.  Maryland  etc., 
Co.  206  Mass.  223,  92  N.  E.  329,  30  L.  B.  A.  (N.  S.)  1192,  138  Am. 
St.  Rep.  379  (contracting  of  glanders) ;  Dove  v.  Alpena,  etc.,  Co., 
198  Mich.  132,  164  N.  W.  253  (death  by  anthrax) ;  Vennen  v. 
New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L.  B.  A. 
•1916  A.  273,  Ann.  Gas.  1918B,  293  (death  by  typhoid  fever). 

"Finally  there  is  the  decision  in  this  state  in  Hartford,  etc., 
Co.  v.  Industrial  Accident  Commission,  32  Cal.  App.  481,  163  Pac. 
225,  where  an  employee  engaged  in  handling  pulverized  grain,  and 
who  contracted  an  affection  of  the  nose  and  throat  from  the  grain, 
was  allowed  compensation.  The  sole  point  discussed  in  the  opin- 

401 

W.  C.— 26 


§  208  WORKMEN'S  COMPENSATION  LAWS. 

ion,  to  be  sure,  is  as  to  whether  the  disease  was  caused  by  th« 
man's  employment,  but  nevertheless  it  is  a  decision  that  cannot  be 
justified  unless  the  word  'injury'  is  broad  enough  to  include  the 
harm  done  by  disease. 

"As  between  these  two  conflicting  lines  of  decision  it  is  not 
necessary  to  determine  where  the  weight  of  authority  lies,  or 
which  cases  are  the  better  reasoned.  If  those  which  give  the  broad- 
er meaning  to  the  word  'injury'  do  not  lay  down  the  better  rule, 
they  at  least  establish  this,  that  it  cannot  be  said  that  the  broader 
meaning  is  an  impossible  or  unreasonable  one.  The  situation 
then,  as  it  presents  itself  in  •  connection  with  our  constitutional 
provision,  is  at  least  that  both  by  general  usage  and  by  the  de- 
cisions of  the  courts  the  word  'injury'  may  have  either  of  two 
meanings,  and  that  either  is  reasonable  and  possible.  In  such  a 
situation,  where  a  constitutional  provision  may  well  have  either 
of  two  meanings,  it  is  a  fundamental  rule  of  constitutional  con- 
struction that,  if  the  Legislature  has  by  statute  adopted  one,  its 
action  in  thisi  respect  is  well-nigh,  if  not  completely,  controlling. '  '55 

§  208.  Inhalation  of  Noxious  Gases. — Deceased  was  employed 
as  a  watchman  in  the  store  yard  and  tool  house  of  defendants 
plant.  On  the  afternoon  of  the  day  of  the  accident  he  was  found 
dead  in  the  office.  Gas  was  escaping  from  a  disconnected  supply 
pipe  leading  to  the  gas  heater.  It  was  concluded  that  deceas- 
ed's  death  occurred  from  gas  poisoning.  In  reversing  an  award 
the  court  said :  that,  conceding  that  the  business  of  the  employer 
was  of  a  hazarduous  nature,  and  one  within  the  New  York 
Workman's  Compensation  Act,  still  the  deceased  was  employed 
as  a  watchmen  at  the  tool  house  and  material  storage  plant  where 
none  of  defendant's  business  was  carried  on,  and  was  not  in  any 

way  subject  to  the  hazards  of  the  business,  and  was  not  an  employee 

• 

55.  City  &  County  of  San  Francisco  v.  Indus.  Cornm.  —  Cal.  — ,  (1920), 
191  Pac  26,  6  W.  C,  L.  J.  428;  In  re  Victor  Frey,  3rd  A.  R.  TJ.  S.  C.  C. 
125;  In  re  Enice  Miller,  3rd  A  R.  -U.  S.  C.  C.  149;  In  r©  Patrick  E.  Burk, 
3rd.  A.  R,  U.  S.  C.  C.  140. 

402 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   208 

in  a  hazardous  employment,  within  the  contemplation  of  the 
Workmen's  Compensation  Act."" 

Where  a  laborer  was  ordered  to  do  some  painting,  and,  in  follow- 
ing instructions,  heated  the  paint  in  an  enclosed  room  and  be- 
came poisoned  from  the  gases,  given  off  in  the  process  of  heating, 
which  caused  his  death,  the  court  held  that  this  was  not  an  occu- 
pational disease,  for  that  term  must  be  restricted  to  a  disease  that 
is  not  only  incident  to  an  occupation,  but  the  natural,  usual,  and 
ordinary  result  thereof;  and  held  not  to  include  one  occasioned 
by  accident  or  misadventure  while  heating  the  paint  in  a  small, 
unventilated  room,  where  the  deadly  fumes  pervaded  the  atmo- 
sphere the  employee  was  compelled  to  breathe.57 

Deceased  was  employed  as  a  fireman  at  furnaces  in  a  smelter  for 
fifteen  years,  about  six  days  before  his  death  he  became  ill,  and 
the  medical  testimony  was  to  the  effect  that  death  was  due  to 
arsenical  poisoning.  The  industrial  board  concluded  that  death 
was  due  to  acute  arsenical  poisoning  not  of  a  chronic  nature.  The 
circuit  court  affirmed  this  award  on  the  ground  that  death  was  due 
to  an  accident  and  not  to  an  occupational  disease.88 

Where  a  carpenter  died  as  a  result  of  the  inhalation  of  poisonous 
fumes  of  chemicals  whale  doing  odd  jobs  about  his  employer's 
plant,  compensation  was  denied  because  claimant  failed  to  prove 
that  death  resulted  from  an  injury  arising  out  of  the  employ- 
ment." 

Where  a  miner  entered  a  portion  of  a  mine,:  against  orders 
and  despite  danger  marks,  for  the  purpose  of  obtaining  a  machine 

56.  Kehoe  v.  Consolidated  Telegraph  and  Electrical  Subway  Co.,  176 
N.  Y.  App.  Div.  84,  162  N.  Y.  Stapp.  481,  16  N.  C.  C.  A.  640;  John  A, 
Roebling's  Sons  Co.  v.  Ind.  A.  C.  of  Cal.,  36  App.  Div.  10,  171  Pac.  987,  16 
N.  C.  C.  A.  891; 

67.  Ind.  Com.  of  Ohio  v.  Roth  et  al.,  98  Ohio  St.  34  120  N.  E.  172.  17 
N.  O.  C.  A.  J42,  2  W.  C.  L.  J.  829;  Holnagle  v.  Lansing  Fuel  &  Gas  Co. 

-  Mich.  — ,  166  N.  W.  843,  1  W,  C.  L.  J.  1010. 

68.  Mattheissen  and  Hegeler  Zinc  Co.  v.  Ind.  Board  of  111.,  284  111.  378, 
120  N.  E,  249,  17  N.  C.  C.  A.  788,  2  W.  C.  L.  J.  876;    Bishop  v.  City  of  Chi- 
cago,  1  111.  Ind.  Bd.  96.  10  N.  C.  C.  A.  274. 

69.  In  R»  Murphy,  230  Mass.  99,  119  N.  B.  657,  17  N.  C.  C.  A.  249;    Ben- 
nett v.  Barnardino  Laundry  Co.,  3  Cal.  I.  A.  C.  229 ;   In  re  Win.  C.  Schaeffer, 
3rd  A.  R.  U.  S.  C.  C.  124. 

403 


§  208  WORKMEN'S  COMPENSATION  LAWS. 

- 

previously  left  there,  and  met  death  from  inhaling  noxious  gases, 
the  court  held  that  deceased 's  death  was  due  to  an.  accident  arising 
out  of  his  employment,  and  his  disobedience  in  this  case  was  mere 
negligence  and  not  sufficient  to  bar  compensation.60 

An  electrician,  while  engaged  in  stringing  wires  in  an  ash 
cellar  under  defendant's  boiler  room,  became  ill  from  coal  gas, 
and  died  three  months  later  of  pulmonary  tuberculosis.  Upon 
evidence  tending  to  establish  that  the  coal  gas  was  the  primary 
cause  of  the  death,  compensation  was  awarded.61 

An  employee,  working  about  furnaces  for  producing  gas,  was 
required,  in  the  performance  of  his  duties,  to  look  into  holes  in 
the  cover  of  the  furnace  about  seventy  times  per  day,  and  the  in- 
halation of  gases  which  escaped  from  these  holes  caused  an  acute 
attack  of  optic  neuritis,  resulting  in  his  becoming  totally  blind. 
It  was  held  that  his  blindness  was  a  personal  injury,  and  com- 
pensable  under  the  Massachusetts  Workmen's  Compensation  Act.62 

Where  a  stevedore,  in  attempting  to  rescue  an  unconscious  man 
from  the  hold  of  a  ship,  was  overcome  by  inhaling  carbonic  acid 
gas  and  died,  the  court  held  that  the  deceased's  death  was  due  to 
an  accident  arising  out  of  his  employment.63 

Compensation  was  awarded  for  the  death  of  a  miner,  whose 
death  resulted  from  the  inhalation  of  poisonous  gases  while  work- 
ing in  the  mines.64 

Death  from  lombar  pneumonia,  following  inhalation  of  smoke, 
and  a  wetting  received  by  a  member  of  a  fire  brigade  while  fight- 
ing fire  to  protect  his  employer's  property,  was  caused  by  an  in- 
jury arising  out  of  the  employment.65 

60.  Gurski  v.  Susquehanna  Coal  Co.,  262  Pa.  1,  104  Atl.  801,  17  N.  C.  C. 
A.  943. 

61.  Odell  v.  Adirondack  Elec.  Power  Co.,  223  N.  Y.  686,  119  N.  E.  1063, 
17  N.  C.  C.  A.  877. 

62.  In  Re  Hurle,  104  N.  E.  336,  217  Mass.  223,  4  N.  C.  C.  A.  527,  L.  R.  A. 
1916A.  279,  Ann.  C.  1915C,  919. 

63.  London  &  E.  Shipping  Co.  v.  Brown,  10  N.  C.  C.  A.  483,  7  F.  488, 
42  S.  C.  L.  R.  357. 

64.  Giaco'bbia  v.  Kerns  Donnjewald  Coal  Co.,  Bull,  No.  1,  111.  Pg.  196. 

65.  In  re  McPhee,  222  Mass.  \,  109  N.  E.  633;  Kedley  v.  Auchenlea  Coal 
Co.,  48  Scotch  L.  R.  768,  4  B.  W.  C.  C.  417. 

404 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   208 

Involuntary  inhalation  of  gas  has  been  held  to  be  an  accidental 
injury  within  the  meaning  of  a  policy  insuring  an  individual 
against  accidental  injury.60 

An  employee  developed  a  case  of  acute  bronchitis  and  lead 
poisoning  as  a  result  of  the  inhalation  of-  gasi  fumes  from  an 
oxyacetylene-burning  machine,  and  it  was  held  that  the  incapacity 
was  due  to  an  injury.'1 

Claimant  was  engaged  in  scaling  the  inner  plating  of  a  cais- 
son. Particles  of  red  lead  being  scaled  became  embedded  in  sore 
spots  on  his  face  or  were  inhaled  into  the  system,  causing  incapacity. 
This  was  held  to  be  an  injury.68 

Injury  to  an  employee  from  inhaling  poisonous  gases  and  fumes, 
which  defendant  had  failed  to  remove  by  ventilators,  fans,  etc. 
was  held  to  be  an  accidental  injury  by  the  common-law  court,  but 
recovery  was  denied  because  the  decision  of  the  commission, 
finding  that  there  was  no  accident,  was  res  adjudicata  in  a  com- 
mon-law action  for  damages.69 

A  plumber,  in  searching  for  a  gas  leak,  lit  a  match,  and  an  ex- 
plosion followed.  After  the  fire  was  extinguished  he  continued  his 
search  for  the  leak  by  the  sense  of  smell,  when  he  suddenly  toppled 
over  and  died.  The  death  was  due  to  a  combination  of  asphyxiation 
and  excitement,  and  was  held  to  "be  an  injury  arising  out  of  the  em- 
ployment.70 

Where  a  blacksmith  inhaled  gas  fumes  from  a  forge,  and  the 
sickness  that  followed  was  a  gradual  development  covering  a  period 
of  several  years,  it  was  held  that  this  was  not  such  an  injury  as 
entitled  the  workman  to  compensation.71 

66.  Paul  v.  Travelers  Ins.  Co..  112  N.  Y.  472,  20  N.  E,  347;    Pickett  v. 
Pac.  Mut.  Life  Ins.  Co.,  144  Pa.  St.  79,  22  All.  871;    Pollock  v.  United  States 
Ins.  Co.,  102  Pa.  St.  230;    United  States,  etc.  Assoc.  v.  Newmans,  84  Va. 
52;    Sinclair  v.  Maritime  Passengers  Ins.  Co.,  3  Ellis  and  Ellis  476. 

67.  In  Re  claim  of  C.  M.  Anita.  Op.  Sol.  Dep.  (1916),  264. 

68.  In  Re  claim  of  Randolph  A.  Thayer,  Op.  Sol.  (1915)  266. 

69.  Naud  v.  King  Sewing  Mach.  Co.,  95  Misc.  Rep.  676,  159  N.  Y.  Supp. 
910. 

70.  Coady  v.  Igo,  1  Conn.  C.  D.   576,  91/  Conn.  54,  98  Atl.  328. 

71.  Hagden  v.  The  Com  m.  Co.,  Conn.  Com'r,  Third  Dist,  June  16. 1916. 
( Unreported ) . 

See  Asphyxiation,  also  Eye  InJuri.ee. 

405 


§  208  WORKMEN'S  COMPENSATION  LAWS. 

While  a  railroad  employee  was  riding  on  top  of  a  car  in  passing 
through  a  tunnel  he  became  dizzy  from  inhaling  smoke  and  gases. 
As  result  of  the  dizziness  he  fell  from  the  car  and  was  run  over 
by  other  cars.  This  was  held  to  be  a  compensable  accidental  in- 
jury.72 

A  gas  fitter  died  from  paralysis,  due  to  cerebral  hemorrhage, 
a  few  days  after  he  had  inhaled  coal  gas,  but  the  evidence  showed 
that  seven  months  previous  to  his  death  he  had  suffered  from  an 
attack  of  paralysis.  The  county  court  Judge  decided  that  the 
death  was  not  due  to  gas  poisoning.  This  was  a  decision  of  a 
question  of  fact  within  the  power  and  duty  of  the  county  judge.73 

Cardiac  hypertrophy,  resultng  from  the  inhalation  of  fumes 
of  ether  in  a  mixing  house  at  the  naval  proving  ground,  caused 
the  death  of  an  employee.  This  was  held  to  be  a  compensable  in- 
jury.74 

Enteritis,  contracted  from  inhaling  sewer  gas  in  the  course  of 
employment,  accelerated  long-standing  heart  disease,  which  in- 
capacitated the  man  from  work  sooner  than  the  heart  disease 
would  have  incapacitated  him.  This  was  held  not  to  be  a  personal 
injury  by  accident.75 

Where  death  resulted  from  -breathing  carbon  monoxide  gas 
in  a  beer  tank  where  charcoal  had  been  burned  to  dry  the  tank, 
the  death  was  held  to  have  been  due  to  an  accident.76 

Compensation  for  disability  from  bronchitis  alleged  to  have  been 
caused  by  the  inhalation  of  poisonous  fumes  from  a  forge  was 
disallowed  on  a  conflict  of  medical  testimony.77 

72.  Caccavano  v.  N.  Y.  Q.  &  W.  Ry.  Co.,  6  N.  Y.  St.  Dept.  Rep.  380,  12 
N.  C.  C.  A.  471. 

73.  Dean  v.  London  &  N.  W.  Ry.  Co.,  3  B.  W.  C.  C.  351,  C.  A. 

74.  Re  Basil  E.  Clark,  Op.  Sol.  Dep.  L.,  page  270. 

75.  Broderick   v.  London   County  Council,   1  B.  W.   C.  C.   219;  Eke  v. 
Sir  William  Hart  Dyke,  3  B.  W.  C.  C.  482. 

76.  Market  v.  National  Brg.  Co.,  2  Cal.  I.  A.  C.  876;  Burgess  v.  Geo.  Star 
and  Empire  Mines  and  Investment  Co.,  2  Cal.  I.  A.  C.  88. 

77.  In  re  Willehad  K.  Seward,  2nd  A.  R.  U.  S.  C.  C.  153. 

406 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   210 

§  209.  Ink  Poisoning. — Disability  caused  by  ink  poisoning  to 
the  hands  of  an  employee  required  to  work  with  the  solution  is  a 
compensable  injury  under  the  Federal  Act.78 

• 

§  210.  Insanity. — In  October  a  workman  suffered  an  injury 
to  his  thumb,  which,  due  to  infection,  was  slow  in  healing.  He 
could  not  work.  After  Christmas  he  became  very  depressed,  and 
began  to  suffer  from  neurasthenia  and  in  a  few  days  threw 
himself  under  a  train  and  was  killed.  The  court,  in  denying 
compensation,  said:  "I  think  if  we  were  to  assent  to  the  very  able 
and  interestng  arguments  whch  we  have  heard  we  should  be  driven 
to  say  that,  wherever  we  find  an  accident  which  involves,  as  so 
many  accidents  do,  depression  of  spirits,  particularly  in  the  case 
of  a  man  who  had  been  leading  an  active  life  as  a  laboring 
man  or  artisan,  depression  at  being  kept  from  his  work  and 
idling  about  at  home,  then  if  neurasthenia  and  suicide  result, 
they  can  all  be  traced  directly  to  the  accident.  If  we  were  to 
say  that,  we  should  be  opening  a  very  wide  door;  and  I  think 
we  ought  not  to  do  so.  I  think,  as  the  Scottish  court  said,  there 
must  be  some  direct  evidence  of  the  insanity  being  a  result  of 
the  accident — something  more  than  the  insanity  being  subsequent 
in  turn  to  the  accident.  The  legal  causation  must  be  established 
and  proved."79 

Subsequent  insanity  of  an  employee  does  not  deprive  him  of 
compensation  due  him  under  the  act.80 

Where  an  employee  became  insane  after  an  accident,  but  due  to 
a  constitutional  disease,  rather  than  the  accident,  compensation 
was  denied.81 

Where  an  injured  employee  became  insane  after  an  operation 
for  hernia,  but  it  was  shown  that  the  patient  had  a  hereditary 
predisposition  to  insanity,  compensation  was  denied.82 

78.  In  re  Wm.  S.  Crews,  2nd  A.  R.  U.  S.  C.  C  Ifi6. 

79.  Withers  v.  London  B.  &  S.  Co.  Ry.,  (1916)  W.  C.  ft  Ins.  Rep.  317,  15 
N.  C.  C.  A.  349. 

80.  In  re  Walsh,  227  Mass.  341,  116  N.  E.  496.  15  N.  C.  C.  A.  345. 

81.  Hansen  v.  Patterson  Ranch  Co.,  2  Cal.  Ind.  Ace.  Com.  769. 

82.  Kato  v.  Godln,  3  Cal.  Ind.  Ace.  Comni.  333;    Simon  v.  H.  J.  Cathroe, 
162  N.  W.  633,  101  Neb.  21/1. 

407 


§  210  WORKMEN'S  COMPENSATION  LAWS. 

Insanity  proximately  caused  by  an  accidental  injury  is  a  proper 
basis  for  compensation.83 

Where  an  accidental  injury,  resulting  in  total  blindness,  pro- 
duced a  condition  of  the  mind  upon  which  softening  of  the  brain 
supervened,  causing  death,  it  was  held  that  the  death  resulted  from 
the  injury.84 

Where  a  pre-existing  constitutional  disease,  known  as  syphilis, 
was  aggravated,  by  an  injury  due  to  an  accident,  until  general 
paralysis  or  insanity  resulted,  depriving  the  employee  of  all  ca- 
pacity for  work  in  the  future  compensation  was  allowed.  The 
court  said :  "The  statute  prescribes  no  standard  of  fitness  to  which 
the  employee  must  conform  and  compensation  is  not  based  on  any 
implied  warranty  of  perfect  health,  or  immunity  from  latent  and 
unknown  tendencies  to  disease,  which  may  develop  into  positive 
ailments,  if  incited  to  activity  through  any  cause  originating  in 
the  performance  of  the  work  for  which  he  is  hired.  What  the 
legislature  might  have  said  is  one  thing,  what  it  has  said  is  quite 
another  thing,  and  in  the  application  of  the  statute  the  cause  of 
partial  or  total  incapacity  may  spring  from,  and  be  attributable 
to  the  injury  just  as  much  where  undeveloped  and  dangerous 
physical  conditions  are  set  in  motion  producing  such  result,  as 
where  it  follows  directly  from  dislocations;  or  dismemberments; 
or  from  internal  organic  changes  capable  of  being  exactly  locat- 
ed.85 

In  the  absence  of  a  showing  that  insanity  resulted  from  an 
accidental  scalp  wound,  compensation  was  denied.86 

An  employee  received  an  injury  to  his  hand  and  bloodpoison 
developed,  resulting  in  insanity.  While  insane  the  employee  com- 

83.  T.  F.  Hayes  v.   Standard  Oil  Co.,  1  Cal.  Ind.  Ace.  Com.  218,  14  N. 
C,  C.  A.  771;  In  re  Arthur  W.  Sttmltz,  2nd  A.  R.  U.  S.  C.  C.  70. 

84.  Mitchell  v.  Grant  &  Aldcroft,  7  W.  C.  C.  113. 

85.  In  re  Crowley,  223  Mass.  288,  111  N.  E.  786,  15  N.  C.  C.  A.  345. 

86.  Brownlee  v.  Coltness  Iron  Co.,  Ltd.  (1917),  W.  C.  &  Ins.  Rep.  235, 
(1917),  1  Sc.  L.  T.  185  15  N.  C.  C.  A.  347;  Slater  v.  Blyth  Shipbuilding  & 
Dry  Docks  Co.,  (1914)  W.  C.  &  Ins.  Rep.  38,  7  B.  W.  C.  C.  193,  11  N.  C.  C. 
A.  800;    In  Re  Ebner,  Ohio  Ind.  Com.  Dec.  No.  1320,  May  12,  1913,  10  N. 
C.  C.  A.  1045. 

408 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   210 

mitted  suicide.  The  court  held  that  the  death  resulted  from  the 
accident.87 

Where  an  employee  is  present  at  the  scene  of  death  by  accident 
of  several  employees,  and  becomes  insane  while  attempting  to  res- 
cue his  fellow  employees,  such  insanity  is  a  disability  proximately 
caused  by  accident,  and  compensable.88 

An  employee  received  an  injury  through  a  splash  of  molten 
lead  in  his  eye.  Later  a  condition  of  insanity  developed,  and! 
while  in  this  state  he  threw  himself  from  a  window  of  the  hospital 
and  was  killed.  The  court  held  that  there  was  sufficient  evidence 
to  establish  the  fact  that  the  death  was  due  to  the  original  acci- 
dent.89 

Where  an  employee  suffered  total  blindness  from  an  injury  to 
his  eyes,  and  later  committed  suicide  the  court  held  that  evidence 
to  show  the  connection  between  the  suicide  and  insanity  alleged 
to  have  resulted  from  the  accident,  should  have  been  admitted.90 

Insanity  is  not  to  be  inferred  merely  from  the  fact  that  a* 
workman  who  had  received  an  injury  to  his  eye,  and  was  suffering 
great  pain,  committed  suicide,  although  there  was  no  other  reason 
advanced  for  the  act  except  the  injury.91 

A  motorman  was  operating  an  elevated  train  which  collided  with 
another  train,  as  the  result  of  which  the  motorman  received  a 
shock  that  caused  insanity.  Compensation  was  awarded.92 

A  blistered  hand  became  infected  and  required  two  operations. 
The  employee  was  driven  insane  through  suffering  and  nervous 
conditions,  and  it  was  held  that  the  connection  between  the  per- 

87.  Chisea  v.  United  States  Crushed  Stone  Co.,  111.  I.  Bd.  No.  629,  Oct. 
28,  1914,  11  N.  C.  C.  A.  504. 

88.  Reich  v.  City  of  Imperial,  1  Cal.  I.  A.  C.  Dec.  (1914)  337,  10  N.  C. 
C.  A.  479. 

89.  In  Re  Sponatski,  In  Re  Standard  Acid  Ins.  Co.,  220  Mass.  526,  108 
N.  E.  466,  8  N.  C.  C.  A.  1025,  L.  R.  A.  1916A.  333. 

90.  Malone  v.  Cayzer.  Irwine  &  Co.,  1  B.  W.  C.  C.  27,  (1808),  S.  C.  479; 
45  Sc.  L.  R.  351,  8  N.  C.  C.  A.  1026;    Southall  v.  Cheshire  Co.  News  Co., 
5  B.  W.  C.  C.  251  (1912),  8  N.  C.  C.  A.  1028,  L.  R.  A.  1916A,  note  339. 

91.  Grime  v.  Fletcher,  8  B.  W.  C.  C.    69;  Furntvale  v.  Johnson,  5  B.  W. 
C.  C.  43, 

92.  McMahon  v.  Interborough  Rapid  Transit  Co.,  5  N.  Y.  State  Rep., 
371. 

409 


§  213  WORKMEN'S  COMPENSATION  LAWS.' 

sonal  injury  and  the  insanity  being  unbroken,  this  was  a  personal 
injury  arising  out  of  the  employment.93 

Insanity  resulting  from  the  use  of  drugs  is  not  a  compensable 
injury.94 

§  211.  Insect  Bite. — Where  the  claimant,  while  working  re- 
ceived an  insect  bite  which  became  infected  from  handling  of 
meal,  it  was  held  that  he  received  an  accidental  injury  for  which 
compensation  would  be  allowed.95 

Where  a  dependent  claimed  that  the  death  of  deceased  was  due 
to  infection  caused  by  an  insect  bite  received  while  cleaning  the 
cellar  of  his  employer's  building,  but  the  hospital  records  showed 
that  death  was  due  to  chronic  cardiac  valvular  disease,  the  In- 
dustrial Accident  Board  found  that  the  death  was  not  due  to  the 
accident,  and  dismissed  the  claim.96 

§  212.  Ivy  Poisoning. — Where  it  was  found  that  ivy  and  sep- 
tic poisoning  were  the  remote  cause  of  an  employee's  death,  and 
that  his  poisoned  condition  predisposed  him  to  acute  congestion 
of  the  lungs,  from  which  he  died  and  the  ivy  poisoning  was  con- 
tracted "while  mowing  grass  along  a  railroad  track,  the  court  held 
that  death  resulted  from  a  compensable  accident.97 

§  213.  Lead  Poisoning. — A  workman  who  gradually  con- 
tracted lead  poisoning  from  working  in  a  room  where  there  was 
molten  lead  and  fumes  arising  therefrom,  was  held  not  entitled 
to  an  award  of  compensation  under  the  Connecticut  act,  as  the 
disease  was  occupational,  arid  not  compensable  under  the  act.98 

93.  Whalen  v.  U.  S.  Fidelity  &  Guaranty  Co.,  2  Mass.  I.  A.  Bd.  318,  11 
N.  C.  C.  A.  498. 

94.  In  Re  Geo.  H.  Himes,  2nd  AJ  R.  U.  S.  C.  C.  122. 

95.  In  Re  Dave,  11  N.  C.  C.  A.  497,  Ohio  Ind.  Comm.  No.  110808. 

96.  Campbell  v.  Aetna  Life  Ins.  Co.,  2  Mass.  Workm.  C.  C.  701,  11  N. 
C.  C.  A.  507. 

97.  Plass  v.  Central  New  England  R.  Co.,  169  N.  Y.  App.  Div.  826,  155 
N.  Y.  Sup.  854,  14  N.  C.  C.  A.  141. 

98.  Miller  v.  American  Steel  &  Wire  Co.,  90  Conn.  349,  97  Atl.  345,  14 
N.  C.  C.  A.  842. 

410 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   213 

The  claimant  contracted  lead  poisoning  in  the  course  of  his  em- 
ployment while  working  in  a  white  lead  plant,  and  became  sick 
and  disabled  by  reason  thereof.  The  court  held  that  this  was  an 
occupational  disease  and  not  a  compensable  injury  under  the  Ohio 
Act.90 

An  employee  contracted  lead  poisoning  while  using  magic  paint 
remover,  a  mixture  of  denatured  alcohol,  ammonia  and  lead,  The 
committee  found  that  the  employee  suffered  an  accidental  injury, 
but  did  not  make  findings  of  specific  facts  or  state  any  conclusion 
drawn  from  the  evidence  in  support  of  the  general  findings.  For 
this  reason  the  higher  court  reversed  the  decree  and  remitted  it 
for  further  proceedings.1 

Claimant  was  employed  in  handling  type,  and  was  suffering 
from  lead  poisoning.  There  was  no  evidence  tending  to  show  the 
source  from  which  the  poison  was  received.  The  court  held  that 
there  were  no  facts  to  show  that  claimant  suffered  a  compensable 
injury.2 

A  lead  grinder,  who  had  been  engaged  in  the  same  employ- 
ment for  20  years,  and  who  became  incapacitated  as  a  result  of 
lead  poisoning,  was  held  to  have  suffered  a  personal  injury  under 
the  Massachusetts  Act.3 

Where  an  employee  worked  38  years  in  a  zinc  reducing  plant, 
and  there  was  no  evidence  in  the  record  showing  lead  poisoning, 
and  the  employee  was  suddenly  stricken  with  lead  poisoning,  it 
was  held  that  the  disease  was  traceable  to  a  definite  time,  place 
and  cause,  and  was  therefore  an  accident,  and  not  an  occupational 
disease  within  the  meaning  of  the  Workman  Compensation  Act.* 

An  employee,  working  in  a  red  lead  plant,  contracted,  lead 
poisoning  and  died.  His  duties  as  sifter  or  bolter  tender  brought 

99.  Industrial  Comm.  of  Ohio  v.  Brown,  92  Ohio  St.  309;  110  N.  E.  744; 
14  N.C.  C.  A.  843. 

1.  In  Re  Mathewson,  227  Mass.  470,  116  N.  E.  831,  14  N.  C.  C.  A.  846. 

2.  In  Re  Doherty,  222  Mass.  98,  109  N.  E.  887,  14  N.  C.  C.  A.  847;   In 
Re  Peter  Sweeney,  2nd  A.  R.  U.  S.  C.  C.  163. 

3.  Johnson   v.    London   Guar.   &    Ace.  Co.,   Ltd.,   4   N.   C.   C.    A.   843, 
104  N.  E.  735,  217  Mass.  388;   Walker  v.  Gage,  223  Mass.  179,  111  N.  E.  353; 
Odonnell's  Case,  —  Mass.  — ,  (1921),  125  N.  E.  353. 

4.  Matthiesaen-Hegeler  Zinc  Co.  v.  Industrial  Board,  284  111.  378, 120  N. 
E.  249,  2  W.  C.  L.  J.  876. 

411 


§  214  WORKMEN'S  COMPENSATION  LAWS. 

him  in  contact  with)  the  lead.  The  court  reversed  the  award  of  the 
Industrial  Accident  Board  saying,  that  lead  poisoning  is  an  occu- 
pational disease  and  not  an  injury  for  which  compensation  can  be 
had  under  the  Michigan  Act.5 

Where  lead  poisoning  contracted  by  a  workman  was  the  cumu- 
lative effect  of  inhalation  of  enamel  powder  extending  over  a  con- 
siderable time,  and  could  not  be  traced  to  any  definite  time,  it 
was  held  not  to  be  an  accidental  injury.6 

Where  an  employee  contracted  acute  bronchitis  and  lead  poison- 
ing as  a  result  of  inhalation  of  gas  fumes  from  an  oxyacetylene 
burning  machine,  it  was  held  that  the  incapacity  was  due  to  an 
injury.7 

Lead  poisoning  is  not  an  accident.8 

Nor  is  an  attack  of  colic  brought  on  by  lead  poisoning.9 

Lead  poisoning  contracted  while  at  work  in  the  usual  course  of 
the  employment  is  a  compensable  injury  under  the  Federal  Act.10 

§  214.  Lightning. — Where  an  employee  of  a  bridge  con- 
tractor is,  with  other  employees,  lodged  and  boarded  on  the  ground 
where  the  work  is  done,  and  after  the  day 's  work  is  done  is  in  the 
boarding  tent,  waiting  until  it  is  time  to  go  to  bed,  and  while  thus 
engaged  is  killed  by  lightning,  this  is  held  not  to  be  an  accidem 
arising  out  of  his  employment.  The  court  said:  "The  words  :out 
of  involve  the  idea  that  the  accident  is  in  some  sense  due  to  tht? 
employment.  Barnabus  v.  Colliery  Co.,  103  L.  T.  R.  543 ;  Fitzger- 
ald v.  Clarke,  2  K.  B.  796.  It  is  said  in  Hopkins  v.  Sugar  Co.,  184 
Mich.  87,  150  N.  W.  325  L.  R.  A.  1916  A.  310:  'An  employee  may 
suffer  an  accident  while  engaged  at  his  work,  or  in  the  course  of 
his  employment  which  in  no  sense  is  attributable  to  the  natuie 
of  or  risks  involved  in  such  employment,  and  therefore  cannot  be 

5.  Adams    v.  Acme  White    Lead  &\  Color   Works,  148  N.  W.   485,  6  N. 
C.  C.  A.  482,  182  Mich.  157,  L.  R.  A.  1916A,  283. 

6.  Derkinderen  v.  Rundell  Mfg.  Co.,  Rep.  Wis.  Ind.  Com.  1914-15,  p.  16. 

7.  In  Re  Claim  C.  Marata,  Op.  Sol.  1915—264;    In  Re  Claim  Willard  E. 
Jule,  Op.  Sol.  1915 — 261.    See  Inhalation  of  Noxious  Gases. 

8.  Steel  v.  Cammel  Laird  &  Co.,  (1905)  7  W.  C.  C.  9. 

9.  Williams  v.  Duncan,  (1898)  1  W.  C.  C.  123. 

10.  In  Re  Geo.  Prescott,  2nd  A.  R.  U.  S.  C.  C.  166. 
412 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   214 

said  to  arise  out  of  it.  In  re  McNicol,  215  Mass.  497,  4  N.  C.  ('. 
A.  522,  102  N.  E.  697,  L.  R.  A.  1916,  A.  306,  wherein  recovery  for 
injury  by  lightning  is  denied,  it  is  done  because  no  causal  relation 
or  peculiar  exposure  appears,  and  it  is  said  that  while  the  injury 
need  not  have  been  foreseen  or  expected,  yet  'after  the  event  it 
must  appear  to  have  had  its  origin  in  a  risk  connected  with  the 
employment  and  to  have  flowed  from  that  source  as  a  rational  con- 
sequence.' "  n 

Tt  has  been  held  in  a  number  of  cases  that  injury  and  death 
due  to  lightning  stroke  under  ordinary  conditions  was  not  an  acci- 
dent arising  out  of  the  employment.12 

In  a  Montana  case,  where  the  employee  was  killed  by  lightning 
while  operating  a  metal  road  grader,  it  was  held  that  the  grader  did 
lift  have  enough  influence  on  lightning  to  increase  the  deceased's 
natural  hazard.18 

Quoting  further  from  Griffith  v.  Cole,  supra :  ' '  It  is  not  intended 
to  hold  that  injuries  from  lightning  can  in  no  case  be  due  to  an  in 
dustrial  employment.  It  has  been  rightly  said  that  it  can  be.  (But 
see  State  v.  District  Court  of  Ramsey  Co.,  129  Minn,  502,  153  N.  W. 
119  which  apparently  recognizes  this  prnciple  as  beng  sound  but 
does  not  follow  it)  *  *  *  And  so  in  Roger  v.  School  Board,  1 
Scots  Law  Times  271  wherein  it  is  said  that,  'To  be  struck  by  light- 
ning is  a  risk  known  to  all  and  independent  of  employment,  yet  the 
circumstances  of  a  particular  employment  might  make  the  risk  not 
a  general  risk,  but  a  risk  sufficiently  exceptional  to  justify  its  being 
held  that  the  accident  from  such  risk  was  an  accident  arising  out  of 
the  employment.  And  it  has  been  rightly  held  that  injury  from 
lightning  did  arise  out  of  the  employment  where  a  telephone  or  tel- 
egraph operator  was  hurt  by  an  electric  shock  received  in  the 
course  of  his  work.  Atlantic  Ry.  Co.  v.  Newton,  118  Va.  222,  12  N 

11.  Griffith  v.  Cole  Bros..  183  la.  415,  165  X.  W.  577,  15  N.  C.  C.  A.  674 

12.  Klawlnuke  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  185  Mich.  643,  152  N.  W. 
213;  Ho-enig  v.  Indus.  Comm.  of  Wis.,  163  Wis.  646,  150  N.  W.  996|  8  N. 
C.  C.  A.  192,  L.  R.  A.  1916  A.  339. 

13.  Wiggins  v.  Indus.  Ace.  Bd.  54  Mont.  335.  170  Pac.  9,  1  W.  C.  L.  J. 
643,  15  N.  C.  C.  A.  69b;  Kelly  v.  County  Council.  1  B.  W.  C.  C.  194;  An- 
drew v     Society  2  K.  B.  32 ;  Falconer  v.  Building  Co.,  3  Ct  of  Seas.  Cas. 
(5th  Series)  564. 

413 


§  217  WORKMEN'S  COMPENSATION  LAWS. 

C.  C.  A.,  328,  87  S.  E.  618.    And  so  where  a  workman  on  a  high 
scaffolding  was  kept  at  work  during  a  storm.    Andrew  v.  Industri 
al  Society,  2  K.  B.  32.    But  where  the  servant  is  riding  a  corn  cul- 
tivator and  plowing  corn,  being   struck  by   lightning  is   suffering 
from  what  is  not  peculiarly  invited  by  the  employment.   ' 

A  driver  of  an  ice  company  was  required  to  follow  a  fixed  route 
in  substantial  disregard  of  weather  conditions.  He  was  permitted 
to  seek  shelter  in  times  of  necessity.  During  a  severe  rain  storm 
accompanied  by  lightning  he  was  struck  by  lightning  while  under 
a  tree.  He  either  went  there  to  seek  shelter  or  was  on  his  way  to 
solicit  orders.  The  court  held  that  he  suffered  a  compensable  in- 
jury, within  the  meaning  of  the  act.14 

"Where  an  employee  was  standing  on  a  steel  bolt,  connected  with 
a  steel  carrier  track  running  through  a  barn,  when  a  bolt  of  light- 
ning struck  the  carrier  track  and  traveled  through  the  bolt  and 
through  the  employee's  foot,  causing  his  death,  it  was  held  that  the 
employment  did  not  expose  him  to  more  than  ordinary  risk  of 
lightning,  and  that  the  injury  was  not  compensable.15 

§  215.  Lumbago. — Lumbago  resulting  from  an  injury  re- 
ceived in  the  employment  is  compensable  under  the  Federal  Act, 
but  compensation  was  denied  because  of  insufficient  evidence.1'5 

§  216.  Malarial  Fever. — Malarial  fever  caused  by  exposure 
to  the  sun,  and  heat  of  a  forest  fire,  and  to  overexertion  was  held 
to  be  a  compensable  injury.17 

§  217.  Meningitis. — Meningitis  caused  by  an  injury  to  the 
spine  is  compensable  under  the  Federal  Act.18 

"Where  compensation  was  claimed  for  the  death  of  an  employee 
caused  by  meningitis  alleged  to  be  due  to  an  injury  and  abscess  of 

1.4..   State  ex  rel.  Peoples  Coal  &  Ice  Co.  v.  Dist.  Court  of  Ramsey  Co., 
.153  N.  W.  119,  9  N.  C.  C.  A.  129,  129  Minn.  502. 

15.  Cornwall  v.  Brock,  2  Conn.  Work,  Comp.  Com.  581. 

16.  In  re   Eugene  E.  Pratt,  2nd  A.  R.  U.   S.  C.  C.  120;  In  re    Walter 
A.  Reiss,  2nd  A.  R.  U.  S.  C.  C.  120. 

17.  .In  re    Archie  A.  Arbuckle,  3rd  A.  R.  U.  S.  C.  C.  127. 

18.  In  re   Thoma^s  Progan,  3rd  A.  R.  U.  S.  C.  C.  118. 
414 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   218 

the  ear,  it  was  held  upon  conflicting  medical  testimony  that  claim- 
ant had  failed  to  show  any  causal  connection  between  the  injury 
and  the  cause  of  the  death.10 

§  218.  Mental  Shock  or  Fright  and  Nervous  Trouble.— A  ner 
vous  shock  sustained  by  a  workman  due  to  excitement  and  alarm, 
resulting  from  a  fatal  accident  to  a  fellow  employee,  was  held  to 
be  an  accidental  injury,  for  which  compensation  would  be  allow- 
,•,!.-" 

Where  an  employee,  while  aiding  in  the  rescue  of  several  co- 
•  inployees,  who  were  killed,  became  insane,  due  to  the  jnental  and 
emotional  slwck  caused  by  the  accident,  it  was  held  that  insanity 
was  a  disability  caused  by  accident.21 

\Yhoiv  an  employee,  working  on  a  scaffold,  fell,  injuring  him- 
self, from  which  he  became  subject  to  nervousness,  the  court  held 
that  the  nervousness  was  the  result  of  an  accidental  injury,  and 
compensate.22 

Where  an  employee  suffered  dizziness  and  nervousness  from  an 
injury  which  incapacitated  her  from  work,  the  court  found  that 
she  was  entitled  to  compensation  for  the  incapacity  due  to  the 
nervousness  and  dizziness.23 

Where  an  employee  suffered  a  nervous  shock  from  being  entirely 
buried,  wl len  the  bank  of  a  trench  in  which  he  was  working  caved 
in,  it  was  held  that  the  incapacity  caused  by  the  nervous  condition 
was  a  compensable  injury.24 

Where  an  employee  had  completely  recovered  from  an  injury, 
caused  by  his  arm  being  caught  in  a  cog  wheel,  but  was  still 

19.  In  re  James  A.  Hardy,  2nd  A.  R.  U.  S.  C.  C.  117;  In  re.  Chas 
E.  Barry,  2nd  A.  R.  U.  S.  C.  C.  170. 

20.  Yates    v.    South    Kirby    Featherstone    and    Hemsworth    Collieries 
Ltd..  2  K.  B.  538;  3  N.  C.  C.  A.  225;  3  B.  W.  C.  C.  418;     In  re  John  "W, 
Lyons,  2nd  A.  R.  U.  S.  C.  C.  106. 

21.  Industrial  Accident  Comm.  in  Reich  v.  City  of  Imperial,  1  Cal.  Ind. 
Ace.  Com.  337,  10  N.  C.  C.  A.  479. 

22.  Coslett  v.  Shoemaker,  38  N.  J.  L.  J.  116,  10  N.  C.  C.  A.  1046. 

23.  Lata  v.   Am.   Mut.   Liability   Ins.  Co..   1   Mass.  W.   C.  C.  283,   10 
N.  C.  C.  A.  1046. 

24.  Paolo  v.  Frankfort  General  Ins.  Co.,  1  Mass.  Wkm.  Com.  Cas.  31, 
10  N.  C.  C.  A.  1047. 

415 


§    220  WORKMEN  'S   COMPENSATION  LAWS. 

suffering  from  historical  paralysis  and  nervous  spasm,  the  court, 
in  a  proceeding  to  discontinue  compensation,  found  that  the  em- 
ployee was  entitled  to  compensation  for  the  nervousness  as  long 
as  it  should  last.25 

Where  the  claimant  asked  additional  compensation  for  nervous 
exhaustion,  and  it  was  found  that  the  condition  was  due  more  to 
lack  of  occupation  and  his  habit  of  dwelling  upon  himself  to  the 
point  of  exaggeration,  than  to  the  injury,  the  court  held  that 
compensation  would  not  be  allowed  for  longer  than  the  period  of 
incapacity.26 

Fright,  without  actual  physical  injury,  is  not  sufficient  to  sustain 
an  award  of  compensation  under  the  Michigan  Act.27 

§  21D.  Mitral  Regurgitation. — Deceased  was  found  at  the  bot- 
tom of  a  platform  on  which  he  had  been  doing  moderately  heavy 
wcrk.  A  thud  was  heard,  and  bruises  about  the  body  indicated  a 
fall.  Thirty  minutes  afterwards  the  doctor  pronounced  him  dead 
of  heart  failure.  The  coroner  found  mitral  regurgitation.  The 
court,  in  reversing  the  commission,  said  that  "there  was  nothing 
unusual  or  fortuitous  about  the  work.  It  cannot  be  assumed 
that  the  man  made  a  misstep,  and  then  again  assumed  that  such 
misstep  caused  fright  and  then  again  assumed  that  the  fright 
caused  the  heart  to  stop.  This  would  be  not  only  basing  an 
assumption  upon  an  assumption,  but  would  be  taking  one  into 
the  realm  of  conjecture.28 

§  220.  Myocarditis. — Deceased,  while  doing  heavy  lifting, 
suffered  a  hernia.  After  an  operation  he  made  a  fair  recovery, 
was  about  for  a  time,  but  remained  in  a  weakened  condition,  and 

25.  Ream  v.  Sutler  Butte  Canal  Co.,  2  Cal.  I.  A.  C.  168;  10  N.  C.  C.  A. 
1048;  Finley  v.  San  Francisco  Stevedoring  Co.,  2  Cal.  I.  A.  C.  174,  10  N.  C 
C.  A;  1048. 

26.  Ford  v.  Travellers  Ins.  Co.,  1  Mass.  Wkm,  Com.  Gas.  332,  10  N.   C. 
C.  A.  1051. 

27.  Visser  v.  Michigan  Cabinet  Co.,  Mich.  Ind.  Ace.  Bd.  Bui.  No.  3  p  24 
In  re  Edith  Woodward,  3rd  A.  R.  U,  S.  C.  C.  129. 

28.  Guthrie  v.  Detroit  Shipbuilding  Co.,  200  Mich.  355,  Ifi7  N.  W.  37, 
1  W.  C.  L.  J.  1035,  17  N.  C.  C.  A.  867  > 

416 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   222 

died  in  six  weeks  of  myocarditis  arteriosclerosis,  which  existed  at 
the  time  of  the  operation  and  prior  thereto.  It  could  not  be  said 
that  the  operation  hastened  the  death  from  this  cause  or  caused 
it,  and  compensation  was  denied.28 

§  221.  Myositis. — Myositis  resulting  from  an  accidental  in- 
jury is  compensable  under  the  Federal  Act.80 

§  222.  Nephritis. — A  cellar  boy  was  compelled  in  the  per- 
formance of  his  duties  to  flush  out  hot  pulp  from  the  floor  of  the 
basement,  by  means  of  water  coming  through  a  hose  from  the 
exhaust  of  the  engine.  On  his  way  home  at  noon  he  became  chilled 
after  having  become  wet  and  overheated  at  his  work.  He  develop- 
ed nephritis  which  incapacitated  him  from  work  for  considerable 
time.  The  court  held  that  the  illness  of  the  claimant  was  due  to 
an  accident  arising  out  of  and  in  the  course  of  his  employment.31 

A  carpenter  received  a  blow  on  the  back  in  the*  course  of  his  em> 
ployment  and  later  acute  nephritis  developed,  which  lowered  his 
vitality  and  power  of  resistance  until  pulmonary  tuberculosis 
became  active,  causing  death.  The  court  held  that  "the  acci- 
dental injury  suffered  by  the  employee  aroused  the  latent  germs 
of  the  disease  to  which  he  was  predisposed,  materially  accelerated 
the  disease  and  caused  his  death  earlier  than  it  would  otherwise 
have  occurred. "  32  • 

Where  an  employe,  having  lost  control  of  a  bogey,  which  he 
was  using  to  come  down  the  employer's  line  of  railway,  jumped, 
and  sustained  injuries,  which  aggravated  a  previous  condition  of 
nephritis,  and  as  a  result  of  such  aggravation  death  resulted  sooner 
than  it  otherwise  would,  the  court  held  that  the  applicant  did  not 
have  to  prove  that  death  would  not  have  resulted  from  this  pre- 
existing disease  but  for  the  accident.  It  was  sufficient  if  the  ap- 

29.  Tucillo  v.  Ward  Baking  Co.,  180  App.  Div.  302  167  N.  Y.  Supp.  666 
(1917),  15  N.  C,  C.  A.  637. 

30.  In  re  James  Wood.  2nd  A.  R~  U.  8.  C.  G.  122. 

31.  United  Paperboard  Co.  v.  Lewis.  64  Ind.  App  — ,  117  N.  E.  276,  16 
N.  O.  C.  A.  887. 

32.  Retmler  v.  Cruse.  (Ind.  App.).  119  N.  B.  32,  17  N.  C.  C.  A.  870.  1 
W.  C.  L.  J.  971. 

417 
W.  C.— 27 


§  222  WORKMEN'S  COMPENSATION  LAWS. 

plicaiit  showed  that  death  occurred  sooner  than  it  would  have 
been  brought  about  by  the  disease,  if  the  .disease  had  not  been 
accelerated  by  the  accident.33 

An  employe  was  struck  by  a  boom  at  the  end  of  a  trolley  pole 
when  a  trolley  wire  broke.  The  blow,  together  with  a  shock  of 
electricity  from  the  wire,  brought  on  a  condition  of  acute  nephritis 
and  total  blindness.  This  was  held  to  be  a  compensable  injury.34 

The  Commissioner  held  that  the  claimant  succeeded  in  establish- 
ing the  causal  connection  between  the  injury  received  in  the  course 
of  his  employment  and  his  disability,  immediately  caused  by 
nephritis^  where  two  physicians  who  had  known  him  previous  to 
the  accident,  and  one  who  had  not  known  him  until  subsequent 
to  the  accident,  testified  that  his  disability  resulted  from  the  in- 
juries, while  another  physician  testified  that  the  disability  was 
due  to  old  age  and  disease.35  • 

Where  an  employee  was  exposed  to  severe  cold  after  falling 
from  a  trestle,  and  later  Bright  disease  or  nephritis  developed,  the 
commission  held  that  the  disease  was  due  to  the  accidental  injury 
and  exposure,  and  compensation  was  allowed.30 

An  employee  sought  compensation  for  disability  resulting  from 
nephritis,  alleged  to  have  been  brought  on  through  the  inhalation 
of  sulphuric  acid  fumes.  Medicial  testimony  showed  that  dis- 
ablity  might  result  from  the  inhalation  of  sulphuric  acid  fumes, 
but  that  nephritis  did  not  result  from  snch  cause.  Compensation 
was  denied.37 

An  overheated  employee  was  exposed  to  a  damp,  cold  draft  while 
in  an  overheated  condition,  and  was  stricken  with  severe  pains 
in  the  elbows  and  between  the  shoulder  blades,  resulting  in  in- 
abilty  to  use  his  hands,  elbows,  shoulder  and  legs.  The  injury  was 
diagnosed  as  multiple  neuritis,  and  was  held  to  be  a  compensable 
injury.38 

33.  Golder  v.  Caledonian  .Ry.,  5  F.  123,  400  Sc.  L.  R.  89,  10  N.  C.  C.A, 
764;  In  re  Hickman  (Dec.  1913)  Op.  Sol.  Dept.  of  L.  P.  751. 

34.  Cooper  v.  Mass.  Employees  Insur.  Ass'n.,;  2  Mass.  W.  C.  C.  573. 

35.  Cody  v.  Bmch,  1  Conn.  Comp.  Dec.  447. 

36.  Gale  v.  Petroleum  Development  Co.,  (1916),  3  Cal.  I.  A.  C.  363;  In 
re  Elton  W.  Riley,  3rd  A.  R.  IT.  S.  C.  C.  128. 

37.  Costain  v.  Carson  Chemical  Co.,  (1916),  3  Cal.  I.  A.  C.  334. 

38.  Re  Charles  J,  Withy,  Qp.  Sol.  Pep.  L.,  p.  273. 
418 


I  I  KSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   223 

Because  of  insufficient  evidence  to  show  any  casual  connection 
compensation  was  denied  where  death  resulted  from  nephritis  al- 
leged to  be  due  to  a  blow  on  the  testicles.89 

§  223.  Occupational  Diseases. — "  'Occupation'  has  been  defined 
by  the  courts  of  this  (Ohio)  and  other  states  to  be  'that 
particular  business,  profession,  trade,  or  calling,  which  engages 
the  time  and  efforts  of  an  individual.'  In  other  words,  the  em- 
ployment in  which  one  regularly  engages,  or  the  vocation  of 
one's  life.  A  disease  contracted  in  the  usual  and  ordinary  course 
of  events,  whch  from  the  common  experience  of  humanity  is 
known  to  be  incidental  to  a  particular  employment,  is  an  occupa- 
tional disease,  and  not  within  the  contemplation  of  the  work- 
men's compensation  lawr."  So  where  an  employee  was  required 
to  heat  paint  in  an  enclosed  room,  and  through  the  inhalation 
of  poisonous  gases  arising  from  the  heated  paint,  death  re- 
sulted, the  court  held  that  the  accidental  and  unforseen  inhaling 
by  an  employee,  in  the  course  of  his  employment,  of  a  specific 
volatile,  poison  or  gas,  resulting  in  injury  or  death,  is  not  an 
occupational  disease.40 

An  employee  engaged  in  staining  mahogany  suffered  from  chap- 
ped hands,  resulting  in  infection.  The  court  held  that  the  injury 
occurred  by  reason  of  the  character  of  the  employment  and  the  act 
makes  no  provision  for  compensation  to  those  suffering  from  oc- 
cupational diseases.41 

39.  In  re  John  H<  Cutler,  3rd  A.  R.  U.  S.  C.  C.  128;  In  re  E.  E.  Hosking, 
2nd  A.  R.U.  S.  C.  C.  170. 

40.  Industrial  Com.  of  Ohio  v.  Roth,  et  al.,  98  Ohio  St.  34,  12  N.  E.  172 
17  N.  C.  C.  A.  342.  2  W.  C.  L.  J.  829;     Industrial  Commission  of  Ohio  v. 
Brown — Ohio — 110  N.  E.  744.    The  Ohio  Constitution  has  been  amended 
to  authorize  Compensation  for  occupational  diseases.     Since  the  decis- 
ions, mentioned   in   this  section  changes  have  been  made  in  the  laws 
of  some  of  the  states.     Occupational  diseases  are  now  specifically  in- 
cluded by  the  Calif.  Conn.  Porto  Rico,  Hawaii  and  Ohio  (1921)  Acts.     N. 
Dak.  by  decision  of  Bureau.  Mass,  by  interpretation.     Excluded   specifi- 
cally by  following  Acts;  Ala.,  Del.,  Idaho.  Ind.,  la..  Ky..  Mo.,  Mont..  Neb., 
S.  Dak..  Tenn.,  Utah.  Md.  and  Minn.     Oregon  excluded   by   implication. 
Michigan,  Utah  and  Texas  excluded  by  interpretation. 

41.  Jerner  v.  Imperial  Furniture  Co.,  200  Mich.  265,  166  N.  W.  943.  17 
N.  C.  C.  A.   344,  1  W.  C.  L.  J.  1066;  McOauley  v.  Imperial  Wollen  Co.,  261 
Pa.  312,  104  AU.  617,  2  W.  C.  L.  J.  933;  Hiers  v.  John  A.  HaU«&  Co..  164 
N.  Y.  S.  App.  863. 

419 


§  223  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  employer  rejected  the  act,  and  an  employee  suffered 
an  injury  in  !a  mine,  caused  by  the  foul  air  therein,  and  sought 
recovery  of  damages  in  a  common-law  action,  the  court  said  that 
the  question  as  to  whether  an  occupational  disease  was  covered 
by  the  Iowa  compensation  act  was  not  in  the  case,  but  in  defining 
what  such  a  disease  it  said:  "An  'occupational  disease'  suffered 
by  an  employee,  if  it  means  anything  as  distinguished  from  a  disease 
caused  by  an  actionable  wrong  or  injury,  is  neither  more  nor  less 
than  a  disease  which  is  the  usual  incident  or  result  of  a  particular 
employment  in  which  the  workman  is  engaged,  as  distinguished 
from  one  which  is  caused  or  brought  about  by  the  employer's 
failure  in  his  duty  to  furnish  him  a  safe  place  to  work.  If  the 
employer  fails  in  his  duty  to  furnish  a  safe  place  to  work  and  the 
employee  is  injured,  the  liability  of  such  employer  can  not  be  avoid- 
ed by  calling  such  injury  an  occupational  disease.  This  in- 
jury having  been  actionable  before  the  enactment  of  the  workmen's 
compensation  law,  was  no  less  actionable  afterwards."42 

A  cigar  maker  who  suffered  from  Neurosis  as  a  result  of  his 
sitting  posture  while  rolling  cigars  for  over  twenty -five  years,  was 
denied  compensation  because  this  was  held  to  be  an  occupational 
disease.  The  court  said:  "No  case  has  gone  so  far  as  to  hold  that 
a  'neuresis  of  the  nerves'  supplying  certain  muscles,  resulting  from 
a  posture  which  causes  the  employee  'to  bend  with  shoulders  for- 
ward so  as  to  induce  pressure  on  the  brachial  plexiis  is  a  personal 
injury.  The  words  'personal  injury'  in  their  connection  in  this 
statute,  do  not  naturally  lend  themselves  to  a  situation  such  as 
that  here  disclosed.  *  *  *  It  awards  compensation  for  disease  when 
it  rightly  may  be  described  as  a  personal  injury.  A  disease  of 
mind  or  body  which  arises  in  the  course  of  employment,  with 
nothing  more,  is  not  within  the  act.  It  must  come  from  or  be 
an  injury,  although  that  injury  need  not  be  a  single  definite  act 
but  may  extend  over  a  continuous  period  of  time.  Poisoning, 
blindness,  pneumonia,  or  the  giving  way  of  heart  muscle,  all  in- 
duced by  the  necessary  exposure  or  exertion  of  the  employment, 
fall  within  well-recognized  classes  of  personal  injuries.  On  the 

42.  Gay  v.  Hocking  Coal  Co.,  184  Iowa  948,  169  N.  W.  360,  17  N.  C.  C. 
A.  346. 

420' 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   223 

other  hand  the  gradual  breaking  down  or  degeneration  of  tissues 
caused  by  long  and  laborious  work  is  not  the  result  of  a  personal 
injury  within  the  meaning  of  the  act.48 

A  lead  grinder,  seventy-two  years  of  age,  who  had  been  engaged 
in  the  same  employment  for  more  than  twenty  years,  and  who 
became  incapacitated  as  the  result  of  lead  poisoning  or  plumism, 
suffered  a  "personal  injury"  within  the  meaning  of  the  Massachu- 
setts Act  which  omits  the  words,  "by  accident."44 

Claimant  contracted  lead  poisoning  while  employed  by  a  manu- 
facturer of  white  lead,  and  became  sick  and  disabled  by  reason 
thereof.  Compensation  was  denied  on  the  ground  that  it  was  an 
occupational  disease.46 

Where  a  workman  contracted  lead  poisoning  from  working  in 
a  room  where  fumes  were  arising  from  molten  lead,  compensation 
was  denied  under  the  Connecticut  act,  as  the  disease  was  occupa- 
tional and  not  a  personal  injury.48 

"Where  a  chambermaid  contracted  dermatitis  which  resulted  in 
infection  of  the  hands,  compensation  was  denied  on  the  ground 
that  this  disease  is  seldom  due  to  any  accident  arising  out  of  and 
happening  in  the  course  of  employment,  although  it  may  be  an 
injury  arising  out  of  such  employment.  In  this  case  the  trouble 
began  with  what  is  generally  regarded  as  an  occupational  disease 
occurring  without  the  happening  of  any  accident.47 

A  boat  builder  bruised  his  knee,  from  which  an  abscess  formed. 
Medical  experts  testified  that  the  injury  could  only  come  from 

43.  In  re  Maggelet,  228  Mass.  57,  116  N.  E.  972,  15  N.  C.  C.  A.  520. 
But  see  Pimenthals  Case — Mass. — 127  N.  E.  424. 

44.  Johnson  v.  London  Guar.  &  Ace.  Co.,  Ltd.,  217  Mass.  388,  104  N.  E. 
735,  4  N.  C.  C.  A.  843.     See  also,  In  re  Hurle  217  Mass.  223,  104  N.  E. 
336. 

45.  Industrial  Com.  of  Ohio  v.  Brown,  92  Ohio  St.  309,  110  N.  E.  744, 
14  N.  C.  C.  A.  843;  Adams  v.  Acme  White  Lead  Works,  182  Mich.  157,  148 
N.  W.  485,  6  N.  C.  C.  A,  482,  Bennetts  Case,  Comm.  of  Ind.  of  Vt.  1918. 

46.  Miller  v.  American  Steel  and  Wire  Co,  90  Conn.  349,  97  Atl.  345. 14 
N.  C.  C.  A.  842;  Re  claim  of  Peters,  Vol.  1,  Bull.  Ind.  C.  of  Ohio  for  Dec. 
1914,  pg.  25. 

47.  McDonald  v.  Dunn,  2  Cal.  I.  A.  C.  D.  (No.  1,  1915),  71.  8  N.  C.  C. 
A.  1091;  LJondale  Bleach,  Dye  &  Paint  Works  v.  Riker,  85  N.  J.  L.  426,  89 
Atl.  929,  4  N.  C.  C.  A.  718. 

421 


§  223  WORKMEN'S  COMPENSATION  LAWS. 

an  accident  in  such  employment.  The  commission  found  that  the 
bursitis  was  not  due  to  occupational  disease,  but  to  injury  as  alleged, 
and  awarded  compensation.48 

Of  interest  and  value  in  this  connection  is  the  recertt  de- 
cision of  an  English  court  in  a  suit  for  damages  at  common  law, 
on  account  of  injuries  suffered,  due  to  occupational  disease. 
"Where  a  person  undertakes  to  do  work  which  is  intrinsically 
dangerous,  notwithstanding  that  reasonable  care  has  been  taken 
to  render  it  as  little  dangerous  as  possible,  he  no  doubt  voluntarily 
subjects  himself  to  the  risks  inevitably  accompanying  it,  and  can- 
not, if  he  suffers,  be  permitted  to  complain  that  a  wrong  has  been 
done  him,  even  though  the  cause  from  which  he  suffers  might) 
give  to  others  a  right  of  action.  For  example,  one  who  has  agreed 
to  take  part  in  an  operation  necessitating  the  production  of  fumes 
injurious  to  health,  would  have  no  cause  of  action  in  respect  of 
bodily  suffering  or  inconvenience  resulting  therefrom,  though  an- 
other person  residing  near  to  the  seat  of  these  operations  might 
well  maintain  an  action  if  he  sustained  such  injuries  from  the 
same  cause."  49 

"Where  an  employee,  engaged  in  operating  sheet  steel  finishing 
rolls,  was  blinded  and  invalided  by  the  strong  glare  of  powerful 
lights  from  the  glittering  surfaces  he  had  to  inspect,  compensation 
was  denied,  the  court  holding  this  to  be  an  occupational  disease, 
not  compensable  under  the  Ohio  Act.50 

Housemaids  knee,  while  an  occupational  disease  common  to 
plumbers  and  those  compelled  to  work  on  their  knees,  has  been 
held  to  be  compensable  under  the  Connecticut  act,  the  commission 
holding  that  the  date  of  the  injury  is  the  time  when  the  injured 
person  by  reason  of  his  illness  became  unable  to  work.51 

Where  a  traffic  officer  had  to  stand  on  his  feet  eight  hours  a 
day,  and  flat  feet  or  broken  arches  resulted,  compensation  was 

48.  Porter  v.  Anderson,  1  Cal.  I.    A.  C.  D.   (No.  24,  1914),  46,  8  N.  C. 
C.  A.  1093. 

49.  Smith  v.  Baker  i&  Sons,   (1916)  A.  C.  325,  60  L.  J.  Q.  B.  683,  65  L. 
T.  367,  13  N.  C.  C.  A.  1084. 

50.  Zajkowski  v.  American  Steel  and  Wire  Co.,  258  Fed.  9,  4  W.  C.  L.  J. 
579,  169  C.  C.  A.  147. 

51.  Robert®  v.  Hitchcock  Hdw.  Co.,  1  Conn.  C.  C.  D.  213. 
422 


PERSONAL  INJURY   OR   DEATH   BY  ACCIDENT.  §    223 

awarded  on  the  ground  that  the  employment  especially  exposed 
him  to  the  danger  of  such  injury  and  that  therefore  it  arose  out 
of  and  was  proximately  caused  by  the  employment.52 

A  workman  who  contracted  pneumonia  by  wading  through  wet 
drifts  and  working  in  wet  garments  in  response  to  an  emergency 
call,  in  the  course  of  his  employment,  will  not  be  denied  compen- 
sation  on  the  ground  that  this  was  one  of  the  probable  consequences 
of  his  employment  and  therefore  an  occupational  disease.83 

Where  an  employee  suffered  from  eye  strain,  brought  on  gradual- 
ly by  the  constant  use  of  her  eyes  extending  over  a  period  ofj 
seven  weeks,  compensation  was  denied.64 

A  workman  employed  by  a  coach  painter  contracted  lead  poison- 
ing. This  was  held  to  be  a  compensable  injury  under  the  British 
Workman's  act.65 

Under  the  British  Act  one  who  had  been  employer  by  several 
different  employers,  and  is  found  to  be  suffering  from  an  occupa- 
tional disease,  may  recover  compensation  in  the  first  instance  from 
the  employers  in  whose  service  he  spent  the  twelve  months  im- 
mediately preceding  the  disablement.50 

Where  the  occupational  disease  progressed  during  several  dif- 
ferent employments,  compensation  should  be  assessed  according  to 
the  degree  of  progress  the  disease  attained  under  each  contract  of 
employment,  and  not  according  to  the  time  spent  in  the  diffm-n' 
employment*.91 

An  occupational  disease  must  manifest  itself  during  the  contract 
of  employment,  otherwise  the  burden  is  upon  the  claimant  to  es- 
tablish that  it  arose  out  of  the  employment.58 
v  While  an   employee   was   engaged   in  snapping   and   stripping 
string  beans  in  a  cannery,  she  noticed  a  blister  or  sore  upon   her 

52.  R.  M.  Hedden  v.  State  Conip.  Ins.  Fund,  &  City  of  San  Diego,  5  Cal. 
I.  A.  C.  D.  1. 

53.  Linnan,e    v.   Aetna   Brewing  Cov    1   Conn.   W.  C.  C.  D.  677. 

54.  Cochran  v.  Elizabeth  A.  Fenton,  1  Conn.  W.  C.  C.  D.  690. 

55.  Pears  v.  Gibbons,  6  B.  W.  C.  C.  722. 

56.  Merry  &  Cunningham  v.  McGowan,  8  B.  W.  C.  C.  344. 

67.  Ban-on  v.  Seaton  Burn  Coal  Co.,  8  B.  W.  C.  C.  218. 

68.  M'Laggart  v.  Wm.  Ban-  &  Sons,  8  B.  W.  C.  C.  377;    Russell  v. 
Keary  (Sch.  Ct  of  Session)  8  B.  W.  C.  C.  4'0. 

423 


§  223  WORKMEN'S  COMPENSATION  LAWS. 

thumb  which  later  became  infected,  requiring  the  amputation  of 
the  thumb,  this  was  held  to  be  an  accidental  injury,  and  not  an  oc- 
cupational disease.59 

A  druggist  who,  suffering  from  constant  irritation  of  his  eyes,  due 
to  poor  lights  in  his  working  quarters  and  the  fumes  arising  from 
the  chemicals,  was  denied  compensation  for  the  disability,  the  com- 
missio'n  holding  that  the  injury  was  due  to  an  occupational  dis- 
ease.60 

"Where  a  fiireman  developed  a  case  of  lobar  pneumonia  following 
exposure  and  a  wetting  while  fighting  a  fire,  compensation  was 
denied,  the  court  holding  that  the  ' '  pneumonia  was  brought  on,  not 
by  an  accident  but  what  was  in  the  nature  of  an  occupational 
disease  an  event  which  was  an  incident  to  his  regular  employ- 
ment."61 

"Where  an  employee  had  worked  for  38  years  in  a  zinc  reducing 
plant  and  there  was  no  evidence  in  the  record  showing  any  arsenic- 
al or  lead  poisoning  prior  to  the  injury  for  which  compensation 
was  sought,  and  the  employee  is  suddenly  stricken  with  lead  pois- 
oning, the  court,  holding  that  the  disease  was  an  accident  and  not 
an  occupational  disease,  said:  "The  second  objection  to  the  judg- 
ment is  that  Adrian  (deceased  employee)  died  from  an  occupation- 
.al  disease  incident  to  the  business  of  smelting  zinc.  A  disability 
caused  in  that  way  or  from  that  source  is  not  to  be  regarded  as  an 
accident,  because  such  a  disease  has  its  inception  in  the  occupation 
and  develops  over  a  long  period  of  time  from  the  nature  of 
the  occupation  and  not  from  any  unusual  or  unforeseen  cause 
or  event.  For  the  prevention  of  such  diseases  there  ia  a  stat- 
ute (Occupational  Diseases  Act  'J.  &  A.  Par.  5433')  requiring 
the  employer  to  use  certain  precautions  for  the  safety  of  the  em- 
ployee and  an  action  may  be  mantained  against  the  employer  for 
failure  to  comply  with  the  provisions  of  the  act  ("Wilcox  v.  In- 
ternational Harvester  Co.  of  America  278  111.  465,  14  N.  C.  C. 
A.  728,  116  N.  E.  151).  For  such  failure  the  injured  employee  is 

59.  Pettit  AT.  Mendenhall,  2  Cal.  I.  A.  C.  238. 

60.  Boehme  v.  Owl  Drug  Co.,  2   Cal.   I.  A.  C.    520. 

61.  Landers    v.    City    of    Muskegon,    196    Mich.     750,    163    N.   W.    43, 
14  N.  C.  C.  A.  947. 

424 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   225 

is  not  confined  to  the  compensation  provided  by  the  workmen's 
compensation  act  nor  limited  by  the  amount  provided  by  the  act. 
For  nearly  50  years  in  the  active  operation  of  the  plant  of  the 
plaintiff  in  error  a  case  of  lead  or  arsenical  poisoning  had  never 
been  known,  and  the  plaintiff  in  error  would  have  had  a  perfect  de- 
fense to  the  death  of  Adrian  on  the  ground  of  the  failure  to  obey 
the  statute  relating  to  occupational  diseases.  There  was  no  evi- 
dence tending  in  any  degree  to  prove  that  the  arsenical  poisoning  of 
Adrian  was  a  disease  incident  to  the  occupation  of  plaintiff  in  er- 
ror."" 

Occupational  neuritis  resulting  from  constant  work  at  a  type- 
writer is,  under  the  Federal  Act,  held  to  be  a  compensable  injury 
arising  out  of  the  employment.88 

§  224.  Osteomyelitis. — A  workman  who  was  engaged  in  mov- 
ing rails,  backed  into  a  prop  with  the  result  that  the  rail  struck 
him  a  blow  on  the  thigh.  He  continued  work  for  some  time,  until 
excessive  pain  forced  him  to  quit.  A  physician  pronounced  the 
case  to  be  osteomyelitis  and  septicaemia  and  advised  an  immediate 
operation,  which  resulted  in  death.  Medical  testimony  claimed 
that  osteomyelitis  might  result  from  a  blow.  It  was  held  that 
the  death  was  caused  by  an  accident.84 

§  225.  Osteosarcoma  from  Fall. — Where  an  employee  claimed 
to  have  slipped  on  a  stairway  and  osteosarcoma  to  the  bone  of  the 

62.  Matthiessen-Hegeler  Zinc  Co.  v.  Ind.  Bd.,  284  111.  378,    120  N.    E. 
249.  17  N.  C.  C.   A.  342;    Dragovich  v.  Iroquois  Iron  Co.,  109  N.  E.  999, 
269  111.  478,  10  N.  C.  C.  A.  475;    Prey  v.  Kerens-Donnewald,  Coal  Co.,  271 
111.    121,  110  N.  E.  824;     Armour    &    Co.  v.  Industrial    Board,   273    111. 
590,  113  N.  E.  138;    Chicago  &  Alton  R.  Co.  v.  Industrial  Board,  274  111. 
336,  113  N.  E.  629;   Suburban  Ice  Co.  v.  Industrial  Board,  274  111.  630; 
Bloomington  D.  &  C.  R.  Co.  v.  Industrial  Board,  276  111.  454,  11 4  N.  E. 
611;  Ohio  Bldg.  Safety  Vault  Co.  v.  Industrial  Board,  115  N.  E.  149,  277 
111.  96;    Albaugh- Dover  Co.  v.  Industrial  Board.  278  111.  179,  115  N.  E. 
834;     Squire-Dingee  Co.  v.  Industrial  Board,  281  111.  359,  117  N.  E.  1031. 

63.  In  re  Catherine  A.  Flynn,  3rd,  A.  R.  U.  S.  C.  C.  129. 

64.  Mills  v.  Dinnington  Main  Coal  Co.  Ltd.,  1917  W.  C.  &   Ins.  Rep. 
Rep.  390. 

425 


§    227  WORKMEN 'S   COMPENSATION  LAWS. 

knee  developed  within  twenty  four  hours,  compensation  was  denied 
on. hearing  the  medical  testimony,  and  because  the  employer  was 
predjudiced  by  lack  of  notice.65 

§  226.  Over  Work. — In  the  absence  of  evidence  of  an  acci- 
dent, compensation  was  denied  for  the  death  of  an?  officer  who 
worked  almost  continuously  day  and  night  for  several  days  in 
loading  a  ship,  and  died  of  heart  failure  six  days  after  the  ship 
left  port.  The  medical  testimony  was  that  thej  death  was  due  to 
the  continuous  strain  of  overwork.66 

Where  a  girl  suffered  a  physical  and  mental  breakdown  and 
aggravation  of  an  old  injury  as  a  result  of  lifting  heavy  crates 
and  doing  other  heavy  work  that  was,'  beyond  her  physicial 
powers,  it  was  held  that  this  wa.i  an  injury  arising  out  of  the  em- 
ployment.67 

Where  an  employee  suffered  from  a  cerebral  hemorrhage  caus- 
ed by  heat  and  overexertion,  together  with  diseased  arteries,  which 
terminated  in  paralysis,  compensation  was  allowed.68 

An  injury  is  within  the  act  when  caused  by  a  strain  from  rush- 
ing work  under  a  time  record  efficiency  system,  whereby  a  stror.g, 
healthy  man  was  kept  under  a  high  nerve  racking  tension  during 
every  minute  of  an  eight  hour  work  day.69 

§  227.  Palmer  Abscess. — Where  a  foreigner  suffered  from  a 
palmer  abscess,  caused  by  the  entrance  of  a  sliver  into  the  palm 
of  hir?  hand,  compensation  was  allowed  for  the(  injury  and  doc- 
tor bills.70 

An  empolyee  received  an  injury  to  his  hand  by  reason  of  ex- 
treme pressure  exerted  while  cutting  a  coil  of  wire  with  a  shears, 

65.  Marcontonio  v.  Charles  iFrancis  Press,    (1916),  9   N.  Y.   St.  Dep. 
Rep.  390. 

66.  Black  v.  New  Zealand  Shipping  Co.,  1913,  6  B.  W.   C.   C.  720;    In 
re  Frederick  E.  Walker,  2nd,  A.   R.    U.    S.  C.  C.    155. 

67.  Pidgeon  v.  Maryland  Casualty  Co.,  2  Mass.  Ind.  A.  Bd.    348. 

6&  Bell  v.  Hayes  Ionia  Co.,  192  Mich.  90,  158  N.  W.  179,  14  N.  C. 
C.  A.  532. 

69.  In  re  Manning  Op.  Sol.  Dept,  Labor,  279. 

70.  In  re  Panasuk,  217  Mass.  589,  105  N.  E.  368,  5  N.  C.  C.  A.  688. 
426 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   228 

from  which  resulted  a  palmer  abscess,  and  a  septic  condition 
without  any  viable  external  wound.  This  was  held  to  be  a  coni- 
pensable  injury-71 

An  employee  wag  continually  handling  a  hammer,  and  develop- 
ed an  abscess  on  his  hand  as  a  result  of  a  break  in  the  callous  on 
the  palm.  Compensation  was  allowed  for  the  accidental  injury, 
despite  the  fact  that  no  definite  time  could  be  assigned  to  the  oc- 
currence of  the  break.72 

While  an  employee  wa»9  cranking  an,  engine  it  kicked  back  and 
injured  his  hand  which  injury  developed  into  a  palmer  abscess. 
This  was  held  to  be  an  accidental  injury.78 

§  228.  Paralysdg. — An  employee  was  awarded  compensation 
for  paralysis  following  heavy  lifting.  The  court  reversed  the 
findings  because  it  appeared  that  the  Industrial  Board  made  its 
award  on  a  finding  that  the  applicant,  prior  to  the  time  he  became 
<li/zy,  had  fallen  down  a  stairway.  There  was  no  evidence  tend- 
ing to  show  that  this  fall  was  in  aaiy  way  connected  wilth  the  em- 
ployment.74 

Where  an  employee  received  a  fall  while  carrying  planks  on  a 
spillway,  and  later  died  from  paralysis,  compensation  was  allow- 
ed, even  though  the  testimony  was  conflicting  as  to  the  cause  of  the 
paralysin.  The  award  was  affirmed  by*  the  appellate  court  on  the 
ground  that  the  finding  of  the  board  was  final  as  tof  the  facts.75 

Wihere  a  coal  minerf  suffered  paralysis,  following  a  blow  on  the. 
head  by  a  falling  mine  prop,  compensation  was  allowed  for  total 
disability.78 

71.  Erickson  v.   Mass.  .Employees   Ins  Assn.,  2   Mass.    Ind.  Ace.    Hd., 
149,  11  Nk  C.  C.  A.  496. 

72.  Zavella  v.  Naughton,  2  Cal.  I.  A.  C.  688. 

73.  Judson  v.  Southern  Cal.  Gas.  Co.,  2  Cal.  I.  A.  C.  254. 

74.  Bradley  Mfg.  Works,    v.    Ind.   Bd.  of  111.,  283  I1L    468,    119  N.    E, 
615,  17  N.  C.  C.  A.  250.  2  W.  C.  L.  J.  226;  Barrett  Co.  v.  Indust.  Com.,  288 
111.     39,    123    N.    E.     29. 

75.  Homan  v.  Boardman    River  Elect.  Light  &  Power  Co.,  200  Mich. 
206,  166  N.  W.  860,  1  W.  C.  L.  J.  1043,   17  N.  C.  C.  A.  790). 

76.  Frey  v.  Kerens-Donnewald  Coal  Co.,  271  111.  121,  110  N.  E.  824.  15 
N.  C.  C.  A.  527;   In  re  Edward  Kinney,  2nd   A.  R.  U.  8.  C.  C.  125. 

427 


§  228  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  employee  had  a  pre-existing  disease  known  afi  syphi- 
lis, and  through  an  accident  this  disease  was  aggravated,  causing 
paralysis  and  insanity,  the  court  affirmed  an  award  allowing!  com- 
pensation.77 

Where  continued  work  in  an  excessively  hot  room  resulted  in  a 
rupture  of  the  cerebral  blood  vesssl  of  an  employee  suffering 
from  arterio  sclerosis,  the  finding  that  the  strain,  upon  the  ar- 
teries caused  by  overexertion  and  excessive  heat  resulted  in  a  rup- 
ture of  a  blood  vessel  in  the  brain  causing  paralysis  was  sustained.78 

Where  a  workman  strained  himself  while  lifting  a  barrel,  and 
suffered  from  apoplexy  and  paralysis,  compensation  was  awarded.79 

A  workman  received  an  electric  shock  which  threw  him  against 
a  bench  with  such  force  that  the  heart  action  was  suddenly  accel- 
erated, causing  a  slight  hemorrhage  of  the  brain,  resulting  in 
paralysis.  His  incapacity  was  held  to  be  due  to  an  injury,  and 
compensation  was  allowed.80 

Where  an  employee,  while  at  work,  fell  out  of  a  window  sustain- 
ing serious  bodily  injuries  resulting  in  paralysis,  the  arbitration 
board  allowed  compensation.81 

An  employee  operating  an  elevator  imagined  that  he  saw  a 
fellow  employee  about  to  be  killed,  and  immediately  sustained  a 
stroke  of  paralysis,  resulting  later  in  his  death.  Medical  testimony 
indicated  that  the  paralysis,  due  to  a  hemorrhage  in  the  brain, 
might  be  caused  either  by  a  severe  mental  shocki  or  by  cerebral  em- 
bolism due  to  former  diseased  heart  condition,  in  which  case  the 
supposed  mental  shock  might  never  have  occurred  in  fact  but  be 
purely  a  hallucination  due  to  the  cerebral  embolism.  Such  evi- 

77.  In  re  Crowley,  223  Mass.  288,  111  N.  E.  786,  14  N,  C.  C.  A.  141; 
Romme  v.  Atl.  Screw  Works,  1  Conn.  I.  A.  C.  D.  108. 

78.  La  Veck     v.    Park   Davis  &  Co.,    190    Mich.  604,    157  N.  W.   72, 
14  N.  C.  C.  A.   141. 

79.  Fowler  v.   Risedorph   Bottling   Co.,  175   N.  Y.    App.   Div.   224,  161 
N.  Y.   Supp.   535,   14   N.  C.  C.  A.  533;     Schmidt  v.   CK  K.  Baking  Co.,   1 
Conn.  C.  D.  362,  14  N.  C.  C.  A.    539;  Lynch  v.  Great  Atlantic  &  Pacific 
Tea  Co.,  1  Conn.  C.  D.  163. 

80.  Milliken  v.  United  States   Fidelity  &    Guar.  Co.,  Mass.   W.  C.    C. 
(1913)  187,  7  N.  C.  C.  A.  647. 

81.  Todd  v.  Grand  Trunk  R.  R.  Sys.  Mich.  I.  A.  Bd.  (1914),  4  N.  C. 
C.  A.  852. 

428 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    228 

dence  is  not  sufficient  to  prove  that  the  paralysis  and  death  were 
due  to  an  accidental  injury.82 

A  workman  fell  and  struck  his  head,  and  was  unconscious  for 
a  half  hour,  but  thereafter  showed  no  signs  of  injury  or  cerebral 
trouble.  Cerebral  hemorrhage  and  paralysis  occurred  three  weeks 
afterwards,  and  caused  death,  but  were  held  not  to  be  due  to  the 
accident.83 

Where  a  gas  fitter,  who  inhaled  coal  gas,  died  two  days  later  of 
paralysis,  but  had  also  had  previous  attacks  of  paralysis,  the 
paralysis  and  death  were  held  not  to  be  due  to  the  gas  poisoning.84 

Where  paralysis  was  gradually  brought  on  by  riding  a  carr.'er 
tricycle,  it  was  held  that  there  was  no  evidence  of  an  accident.85 

Compensation  was  allowed  to  an  employee  for  the  loss  of  a  hand 
rendered  useless  through  paralysis  following  an  injury  to  his  fin- 
gers.88 

Where  a  fireman,  while  attempting  to  clear  a  passageway  of 
iron  beams,  felt  a  pain  in  his  stomach  and  became  weak,  and  later 
suffered  a  paralytic  stroke,  it  was  held  that  his  injury  was  due  to 
an  accident.87 

Paralysis  caused  by  an  embolism,  where  the  employee  suffered 
no  traumatic  accident,  was  held  not  to  be  a  compensable  injury.88 

Where  a  telephone  operator  sought  compensation  for  facial 
paralysis,  alleged  to  have  been  caused  by  pressure  of  the  head- 
piece, worn  by  the  operator,  compensation  was  denied,  because 
medical  testimony  showed  that  the  paralysis  was  not  due  to  tlio 
wearing  of  the  ear  phone.89 

Paralysis  caused  by  an  acute  attack  of  anterior  poliomyelitis 
was  held  not  to  be  the  result  of  an  injury  when  the  employee  fell 

82.  Keck  v.  Morehouee,  2  Cal.  I.  A.  C.  D.  264  (1915).  10  N.  C.  C.  A. 
1048 

83.  McAdob  v.  Cudahy  Packing  Co.,  2  Cal.  I.  A.  C.  D.  512. 

84.  Dean  v.  London  &  N.  W.  R.  R.  Co..  3  B.  W.  C.  C.  351  C.  A. 

85.  Walker  v.  Hocfcney  Bros..  2  B.  W.  C.  C.  20  C.   A. 

86.  Floccher  v.    Fidelity  &    Deposit  Co,  of    Md..  221    Mass.  54,    10& 
N.  E.  1032. 

87(,    Manning  v.  Pomerene,    101  Neb.  127.    162  N.   W.  492. 

88.  Mohr  v.  Cranford,  Inc.,  7  N.  Y.  8t  Dep.  Rep.  376. 

89.  Wilson  v.  Pac.  Tel.  Co.,  1  Cal.   I.  A.   C.  Part  2.  414. 

429 


§  230  WORKMEN'S  COMPENSATION  LAWS. 

into  ice  cold  water  ten  days  previous,  hence  compensation  under 
the  Federal  Act  was  denied.90 

Where  the  claimant  was  struck  on  the  head  by  a  swinging  door 
but  not  with  sufficient  violence  to  make  a  mark  on  his  head,  jt 
was  held  that  subsequent  paralysis  did  not  result  therefrom.91 

§  229.  Periarthritis. — Where  an  employee  was  struck  on  the 
elbow  by  a  falling  board,  and  developed  periarthritis,  compensa- 
tion was  allowed.92 

§  230.  Peritonitis. — Where  an  employee,  suffering  from  an 
electric  shock,  later  died  from  peritonitis,  compensation  was  de- 
nied because  of  failure  to  show  any  causal  connection  between  the 
accident  and  the  cause  of  the  death.93 

Where  a  workman  slipped  and  fell  on  a  spillway  while  carrying 
planks,  and  later  died  from  peritonitis  caused  by  paralysis  of  the 
brain,  it  was  held  that  death  was  due  to  the  accidental  fall,  and 
compensation  was  allowed.94 

Where  a  bargeman  slipped  while  attempting  to  climb  out  of 
a  prism  of  a  barge  canal,  striking  his  abdomen,  which  aggravated 
a  diseased  appendix,  causing  an  acute  exacerbation  thereof,  pro- 
ducing a  rupture  from  which  acute  peritonitis  developed,  causing 
death,  compensation  was  allowed.95 

One  employee  turned  an  air  hose  upon  another  employee,  in 
the  region  of  the  rectum.  This  caused  the  victim  to  suddenly  jerk 
and  straighten  his  body,  causing  a  rupture  of  an  abcess  about 
the  gall  bladder,  from  which  deceased  was  suffering.  Acute  general 
peritonitis  followed,  resulting  in  his  death.  This  was  held  to  be 
a  compensable  injury.  This  "horseplay"  having  become  common 

90.    In  re  Geo.  S.  Eggleston,  3rd  A.  R.  IL  S.  C.  C.  138. 

9K    Fink  v,  (Sheldon  Axle  &  Spring  Co.  —  Pa.  — ,  113  All.  666. 

92.  Jirgens  v.  St.   Comp.  Ins.  Fund,   2  Cal.  I.  A.    C.   134. 

93.  Merriman  v.  Scovil  Mfg.  Co.,  1  Conn.  C.  Dec.  569. 

94.  Homan  v.  Boardman  River  Light  and    Power  Co.,  200  Mich.  206, 
106  N.  W.  860,  17  N.  C.  C.  A.  790,  1  W.  C.  L.  J.  1043. 

95.  Lindqiuest  v.  Holler,  178  N.  Y.  App.  Div.  317,  164  N.  Y.  Supp.  906, 
14  N.  Cv    C.  A.    432;     Western  Indem,    Co.    v.  Indus.  Ace.   Comm.,  • — • 
Cal.  — -,  168  Pac.  663,  1  W.  C.  L.  J.  478. 

430 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   230 

and  continued  with  the  knowledge  of  the  employer  was  one  of 
the  risks  of  the  employment." 

A  coal  heaver  received  a  blow  on  the  stomach  from  falling  coal. 
An  operation  revealed  that  he  was  suffering  from  perforation  of  tho 
bowel,  and  also  from  appendicitis  of  some  standing.  He  died  throa 
days  later.  A  post  mortem  revealed  a  second  perforation  which 
\\as  not  in  existence  at  the  time  of  the  operation,  and  it  was  found 
that  death  had  resulted  from  peritonitis  caused  by  the  second  per- 
foration. Compensation  was  denied  because  of  failure  to  show  any 
causal  connection  between  the  accident  and  the  cause  of  the 
death.97 

Where  an  operation  for  appendicitis  was  made  necessary  be- 
cause of  traumatic  peritonitis,  it  was  held  to  be  a  personal  in- 
jury.98 

Where  deceased  fell  from  a  ladder  and  sustained  numerous  in- 
juries, and  later  died  from  appendicitis  peritonitis,  it  was  held,  up- 
on conflicting  medical  testimony,  that  there  was  a  relation  between 
the  accident  and  the  death,  and  compensation  was  allowed.09 

Applicant  suffered  from  peritonitis  caused  by  a  foreign  sub- 
stance which  had  lodged  in  the  abdomen  years  before  but  inflam- 
mation was  precipitated  by  a  blow  on  the  abdomen.  In  the  absence 
of  any  other  factor  which  might  cause  the  peritonitis,  the  board 
held  that  it  resulted  from  the  blow.1 

Where  an  employee,  who  was  undergoing  an  operation  for  her- 
nia, which  resulted  from  an  injury,  requested  that  he  be  operated 
upon  for  appendicitis  at  the  same  time,  and  died  as  the  result  of 
peritonitis,  which  developed  from  the  appendicitis  operation,  the 
court  held  that  the  death  was  not  due  to  the  accidental  injury/ 

96.  In  re  Loper,  64  Ind.  App— ,  118  N.  E.  324,  15  N.  C.  C.  A.  284. 

97.  Woods  v.  Thomas  Nelson  Sons  &  Co.,  (1913),  W.  C.    &  Ins  R,ep. 
569. 

98.  Gregg  v.  Frankfort  Gen.  Ins.  Co.,  2  Mass.  I.  A.  Bd.  581. 

99.  Euman  v.  James  Dalziel  &  Co.,    (1913),  Ct  of  Sessions  Gas.  246, 
(1913),  W.  C.  &  Ins.  Rep.  49,  10  N.  C.  C.  A.  763,  6  B.  W.  C.  C.  900. 

1.  Henne  v.  Hjul.  1  Cal.  I.  A.  C.  D.  133. 

2.  Hoffman  v.  Pierce  Arrow  Motor  Car  Co.,  183  N.  Y.  S.  766,  (1920),  6 
W.  C.  L.  J.  569. 

431 


§  231  WORKMEN'S  COMPENSATION  LAWS. 

§  231.  Pleurisy. — Where  an  employee  was  struck  by  a  broken 
belt  and  injured  about  the  face,  nose  and  right  side,  and  as  a  re- 
sult thereof  traumatic  pleurisy  set  in,  which  later  developed  into 
pneumonia  and  other  diseases,  causing  death,  compensation  was  al- 
lowed.8 

An  undertaker's  employee  suffered  an  injury,  alleged  to  hava 
been  caused  by  an  accident  in  moving  a  coffin,  which  developed  in- 
to pleurisy,  followed  by  pneumonia,  causing  death.  The  recorder 
found  that  the  death,  was  due  to  the  injury  by  accident,  and  com- 
pensation was  allowed.4 

An  employee,  in  order  to  avoid  injury  when  a  crane  which  he 
was  operating  broke,  jumped  into  a  river,  and  pleurisy  and  tuber- 
culosis resulted.  The  court  held  this  to  be  an  accidental  injury, 
and  allowed  compensation.5 

Where  a  canvasser  and  collector,  who  was  hurrying  with,  his 
work,  developed  pleurisy  from  becoming  overheated  and  then  chil- 
ling, it  was  held  not  to  be  a  personal  injury  by  accident.6 

Where  an  employee  had  undergone  an  operation  in  which  two  of 
his  ribs  were  removed,  and  later  he  received  an  accidental  injury 
which  caused  pleurisy  and  aggravation  of  a  condition  of  empyerna, 
which  caused  disability  for  an  extended  period  of  time,  the  Board 
held  this  to  be  an  accidental  injury.7 

An  employee  was  struck  in  the  chest  by  the  arm  of  a  knitting 
machine,  but  continued  to  work  against  his  physician's  advice,  and 
twelve  days  after  the  accident  he  was  found  to  be  suffering  from 
traumatic  pleurisy,  which  caused  his  death.  Compensation  was  al- 
lowed.8 

3.  Vogeley  v.  Detroit  Lbr.  Co.,  196  Mich.  516,  162  N.  W.  975,  14  N.  C.  C. 
A.  142;    Diaz  v.  American  Mutual  Liab.  Ins.  Co.,  1  Mass.  Ind.  A.  Bd.  430; 
In  Re  Herbert  G.  Dupree,  3rd  A.  R.  U.  S.  C.  C.  133. 

4.  Wright  v.  Kerrigan,  (1911),  2  Ir,  R.  310,  45  Ir.  L.  T.  82. 

5.  Rist  v.  Larkin  &  Sangster,  171  App.  Div.  71,  156  N.  Y.  Supp.  875. 

6.  McMillan  v.    Singer  Sewing  Mach.  Co.,  Ltd.,  (1913),  6    B.  W.  C.  C. 
?45  Ct.  of  Sess.;  In  re  Chas.  E.  Davis,  3rd  A.  R.  U.  S.  C.  C.    132;  In  Re 
Albert  C.  Mills,  3rd  A.  R.  U.  S.  C.  C.  133. 

7.  Bakiewicz  v.  National  Brake  and  Electric  Co.,  4  Annual  -Rep.  (1915), 
Wis.  Ind.  Com.  11. 

8.  Greenberg  v.  Canadian  Knitting  Mills,  S.  D.  R.  Vol.  10,  p.  572,  178 
App.  Div.  N.  Y.  942. 

432 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   232 

Compensation  was  awarded  for  injuries  received  by  a  mason's 
helper  from  falling  brick.  He  recovered  sufficiently  to  go  about, 
and  three  months  after  the  accident  he  died  from  pleurisy.  The 
commission's  physician  was  of  the  opinion  that  "traumatic  pleu- 
risy should  have  made  its  appearance  a  good  deal  earlier."  Com- 
pensation for  his  death  was  denied.9 

§  232.  Pneumonia. — Where  post  operative  or  ether  pneumonia 
followed  an  operation,  made  necessary  by  the  accidental  injury, 
and  caused  death,  compensation  was  allowed.10 

Where  an  employee  was  suffering  from  bloodpoisoning,  and  he- 
cause  of  his  lowered  vitality  he  developed  pneumonia,  which  caus- 
ed his  death,  compensation  was  allowed.  1J 

Where  a  miner  developed  pneumonia  caused  by  the  inhalation 
of  poisonous  gas,  generated  by  a  blast  explosion,  when  the  amount 
of  gas  far  exceeded  that  usual  tx>  this  method  of  blasting,  it  was 
held  to  be  due  to  accident.  12 

A  workman  met  with  an  accident  to  his  arm,  was  taken  to  a  hos- 
pital, the  arm  placed  in  splints,  and  he  was  sent  home.  The  next 
day  he  was  found  to  be  suffering  from  acute  pneumonia,  from 
which  he  died.  It  was  held  that  death  had  resulted  from  the  in- 
jury. " 

9.  Henry  v.  Fuller  Co.,  179  N.  Y.  App.  Div.  952,  165  N.  Y.  Supp.  1091. 

10.  In  re  Bently,  217  Mass.  79,  4  N.  C.  C.  A.  559,  104  N.  E.  432;  In  re 
Raymond,  Mass.  W.  C.  Rep.  (1913),  277;  Favro  v.  Board  of  Public  Library 
Trustees,  1  Cal.  Ind.  A.  C.  D.  (No.  15,  1914)  1,  6  N.  C.  C.  A.  627;    Shirt  v. 
Calico  Printers'  Assn.,  Ltd.,  78  L.  J.  K.  B.  528,  (1909),  2  K.  B.  51,  100  L. 
T.  740,  25  T.  L.  R.  451,  53  Sol.  J.  430,  2  B.  W.  C.  C.  342,  6  N.  C.  C.  A. 
628;  Jendrus  v.  Detroit  Steel  Products  Co.,  178,  Mich.  266,  4  N.  C.  C.  A. 
864,  144  N.  W.  563,  L.  R,  A.  1916A,  381,  Ann.  C.  1915D,  476. 

11.  Wittelberger  v.  Rach,  181  Mich.  463,  4  N.  C.  C.  A.  915;  Bayner  v. 
Riverside  Storage  and  Cartage  Co.,  181  Mich.  378,  4  N.  C.  C.  A.  916,  148 
N.  W.  412,  Wiereum  v.  Nachtegall  Mfg.  Co.,  Mich.  L  A.  Bd.  4  N.  C.  C. 
A.    916;    Merritt  v.  Traveler's  Insur.  Co.,  2  Mass.  W.  C.  C.  635;    Tanner 
v.  Aluminum  Castings  Co.,  —  Mich.  — ,  (1920).  178  N.  W.   69,  6  W.  C. 
L.  J.  3S7. 

12.  Kelley  v.  Auchenlea  Coal  Co.,  Ltd.,  1911  S.  C.  864,  48  Sc.  L.  R.  768; 
S  B.  W.  C.  C.  417  ,4  N.  C.  C.  A.  911 . 

13.  Cameron  v.  Port  of  London  Authority,  (1915),  5  B.  W.  C.  C.  416; 
4  N.  C.  C.  A.  909. 

433 

W.  C.— 28 


§  232  WORKMEN'S  COMPENSATION  LAWS. 

A  debilitated  workman,  who  had  injured  his  knee,  contracted 
pneumonia  as  a  result  of  being  compelled,  because  of  the  pain  in 
his  knee,  to  take  a  long  time  to  get  home  on  a  cold  day.  This  was 
held  to  be  an  accidental  injury,  compensable  under  the  English 
act.14 

Where  a  workman,  hired  as  a  member  of  a  fire  brigade  to  help 
protect  his  employer's  property,  was  'wet  to  the  skin  with  water, 
and  inhaled  smoke,  while  fighting  fire,  40  feet  from  his  employer's 
premises,  and  died  of  lobar  pneumonia,  his  death  was  held  to 
have  resulted  from  an  injury.15 

"Where  an  employee  fell  3  feet  and  landed  in  a  sitting  position, 
and  complained  of  pain  and  stiffness  for  a  few  days,  and  about 
a  week  later  he  was  seized  with  convulsions,  and  died  from  pneu- 
monia, compensation  was  denied  on  the  ground  that  no  connection 
was  shown  to  exist  between  the  accident  and  the  cause  of  the 
pneumonia  which  resulted  in  death.16 

A  night  watchman  fell  and  fractured  the  neck  of  the  right 
femur.  Later  he  died  from  static  pneumonia  while  still  in  the 
hospital  recovering  from  his  injury.  It  was  held  that  the  death 
was  due  to  the  injury  received  in  the  course  of  his  employment.17 

Where  an  employee,  engaged  in  making  shells,  received  scratches 
on  his  hands  which  became  infected,  causing  blood  poisoning,  which 
later  developed  into  pneumonia,  which  resulted  in  his  death,  com- 
pensation was  allowed,  although  it  was  not  shown  just  the  exact 
time  when  the  infection  occurred.18 

14.  Ystradowen    Colliery  Co.,  Ltd.,    v.  Griffiths    (1910),   2k  B.    W.  C.  C. 
357,  C.  A. 

15.  In  re  McPhe,e,  222  Mass.  1,  109  N.  B.  633,  10  N.  C.  C.  A.  257;  In 
Re  Harry  O.  Walters,  3rd  A.  R.  U.  S.  C.  C.  135;    In  Re  John  J.  McKenna, 
2nd  A.  R.  U.  S.  C.  C.  191. 

16.  Senter  v.  Klyce,  2  Cal.  Ind.  A.  C.  695;    Currie  v.  Royal  Indem.  Co., 
2  Mass.  Ind.  A.  Bd.  174,  11  N.  C.  C.  A.  507;    Shay  v.  Christian  Feigenspan 
Corp.,  1  Conn.  Comp.  Dec.  232;    Lucien  v.  Judson  Mfg.  Co.  &  Cal.  Casualty 
Ins.  Co.,  1  Cal.  Ind.  A.  C.  part  2,   59;     In  Re   Henry   Schiller,   2nd  A. 
R.  U.  S.  C.  C.  104. 

17.  Oberg  v.  McRoberts  &  Co.,   6  N.  Y.  S.  Dep.  Rep.  386;     Depend- 
ent of  John  Marx  v.  City  of  Bridgport,  2  Conn.  C.  Dec.  227;    In  Re  John 
B.  Wirt,  3rd  A.  R.  U.  S.  C.  C.  136;    In  Re  Albert  L.  Gordon,  3rd  A.  R.  U. 
S.  C.  C.  137;    In  Re  Andrew  Fletcher,  3rd  A.  R.  U.  S.  C.  C.  138. 

18.  Burvill  v.  Vickers,  Ltd.,  (1915),  W.  C.  &  Ins.  Rep.  563,  13  N.  C.  C. 
A.  1020. 

434 


PERSONAL.  INJURY  OR  DEATH   BY  ACCIDENT.  §   232 

A  lineman  was  exposed  to  bad  weather  and  developed  pneu- 
monia, from  which  he  died.  Compensation  was  denied  because  of 
lack  of  any  showing  of  connection  between  the  exposure  and  the 
disease  which  caused  the  employee's  death.19 

A  mine  inspector,  after  making  his  rounds,  was  compelled  to 
wait  for  a  time  at  the  bottom  of  a  shaft  for  a  car  to  take  him  to 
the  surface.  "While  waiting  he  was  exposed  to  a  very  cold  current 
of  air  from  a  ventilating  shaft.  He  contracted  pneumonia  there- 
from and  died.  The  House  of  Lords  held  this  was  not  an  acci- 
dent.20 

A  fireman,  due  to  the  illness  of  a  fellow  fireman,  was  called  to 
work  at  2  a.  m.  He  came  to  work  through  a  severe  snow  storm, 
getting  wet  to  the  waist,  and  worked  in  his  wet  clothes  for  12 
hours.  He  arrived  home  exhausted,  subsequently  contracting  a 
severe  cold,  but  he  worked  for  a  week,  when  pneumonia  developed, 
causing  his  death.  The  court  said:  "We  must  recognize  the  fact 
that  in  common  speech  and  understanding  a  bodily  injury,  whether 
manifest  to  the  senses  at  the  time  it  is  sustained  or  subsequently 
revealed  by  functional  disturbance  is  always  assignable  to  some 
definite  part  or  organ  of  the  body,  and  when  caused  by  accident 
is  always  sustained  at  the  time  of  the  accident  or  at  least  during 
the  time  within  which  the  accidental  condition  is  operative.  An 
accidental  bodily  injury  therefore  may  be  defined  as  a  localized 
abnormal  condition  of  the  living  body  directly  and  contemporane- 
ously caused  by  accident;  and  an  accident  may  be  defined  as  an 
unlooked-for  mishap  or  untoward  event  or  condition  not  expected. 
The  concurrence  of  accident  and  injury  is  a  condition  precedent 
tu  <he  right  to  compensation.  On  this  record  the  unusual  weather 
conditions  or  the  consequent  untimely  and  prolonged  hours  of 
labor  or  both  may  be  said  to  supply  the  element  of  an  untoward 

19.  Bockwicb  v.  Housatonic  Power  Co.,  1  Conn.  C.  D.  266;    In  Re  Al- 
veros  W.  Fletcher,  3rd  A.  R.  U.  S.  C.  C.  134;    In  Re  Herman  C.  Heffner. 
3rd  A.  R.  U.  S.  C.  C.  136;    In  Re  Robert  F.  Parks,  3rd  A.  R.  U.  S.  C.  C. 
136;    In  Re  Wm.  H.  Lynch,  3rd  A.  R.  U.  S.  C.  C.  183;    In  Re  Win.  J.  Lehr, 
2nd  A.  R.  U.  S.  C.  C.  183;    In  Re  Calvin  K.  Carnes,  2nd  A.  R.  U.  S.  C.  C. 
189. 

20.  Lyons  v.  Wooditee  Coal  ft  Coke  Co.,  Ltd.,  (1917),  W.  C.  ft  Ins.  Rep. 
236,  16  N.  C.  C.  A.  694;    Langley  v.  Reeve,  3  B.  W.  C.  C.  175. 

435 


§  232  WORKMEN'S  COMPENSATION  LAWS. 

and  unexpected  condition  of  the  employment.  The  direct  and 
contemporaneous  result  of  this  accidental  condition  was  exhaus- 
tion, and  the  record  therefore  shows  that  the  decedent  was  acci- 
dentally exhausted  on  Dec.  14th.  It  is  clear  however,  that  exhaus- 
tion although  accidentally  incurred  is  not  in  and  of  itself  a  bodily 
injury  either  according  to  common  speech  and  understanding  or 
according  to  the  above  definition ;  for  it  may  or  may  not  overcome 
the  elastic  resistance  of  the  system  and  may  or  may  not  result 
either  in  a  bodily  injury  or  in  a  disease.  *  *  *  We  are  not 
at  liberty  to  construe  the  act  so  as  to  include  diseases  which  are 
caused  by  accident  without  the  intervention  of  bodily  injury.  To 
construe  the  act  as  denying  compensation  in  cases  of  occupational 
disease  and  yet  granting  it  in  case,  for  example,  of  influenza  from 
working  near  a  window  inadvertently  left  open,  would  impute 
to  the  general  assembly  the  intention  to  make  a  distinction  whicli 
appears  to  us  to  be  unjust  and  inconsistent  with  the  principles 
underlying  all  legislation  on  the  subject  of  workmen's  compen- 
sation."21 

The  husband  of  claimant  came  in  contact  with  a  live  wire,  caus- 
ing him  to  fall  28  feet,  his  knees  striking  his  chest  violently, 
which  "resulted  in  continuous  pain  from  the  time  of  the  accident 
until  the  trouble  was  diagnosed  by  the  physician  as  lobar  pneu- 
monia, and  we  find  nothing  in  the  record  to  justify  the  inference 
that  between  the  time  of  the  injury  and  the  development  of  the 
disease  there  were  other  causes  from  which  pneumonia  might  have 
been  contracted.  *  *  *  The  injury  to  the  chest  was  the  proxi- 
mate cause  of  the  disease. ' ' 22 

A  fireman  died  of  lobar  pneumonia  four  days  after  a  fire  during 
which  he  was  exposed  to  wet  and  cold  for  12  hours.  The  court 
held  that  the  "pneumonia  was  brought  on,  but  not  by  an  un- 

21.  Linnane  v.  Aetna  Brewing  Co.,  91  Conn.  158,  99  Atl.  507   (1916). 

22.  Murdock  v.  New  York  News  Bureau  et  al.,  263  Pa.  502,  106  Atl. 
788,  4  W.  C.  L».  J.     451,   (1919);   Brasleves  Co.  v.  Indus.  Comm.  of  Wis. 
167  Wis.  202, -167  N.  W.  256;   Cledou  v.  Hof  Brau  Cafe,  3  Cal.  Ind.  Ace. 
Com.  233. 

436 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   232 

expected  event,  but  by  an  event  which  was  an  incident  to  his 
regular  employment."23 

Where  a  miner,  perspiring  as  a  result  of  his  work,  was  compel- 
led, due  to  a  breakdown  of  the  machinery,  to  stand  in  a  shaft  ex 
posed  to  a  draft  of  cold  air,  from  which  he  contracted  pneumonia 
and  died,  it  was  held  that  .the  man's  death  resulted  from  an  injury 
by  accident.24 

Where  a  miner,  due  to  the  breaking  of  a  pump,  was  compelled 
to  stand  in  water  for  a  time,  as  a  result  of  which  he  contracted 
pneumonia  and  died,  it  was  held  to  be  an  accidental  injury.25 

Where  an  employee  suffered  an  accidental  injury,  and  as  a  re- 
sult was  exposed  to  stormy  weather  for  one  hour  and  a  half,  and 
in  a  few  days  developed  pneumonia  while  in  a  hospital,  it  was  held 
that  the  accident  was  the  proximate  cause  of  the  pneumonia.28 

Where  an  employee  was  struck  a  severe  blow  in  the  face  by  a 
power  belt,  which  broke,  and  in  a  few  days  he  died  of  pneumonia, 
which  developed  from  the  traumatic  pleurisy  that  resulted  from 
the  blow,  it  was  held  that  the  evidence  was  sufficient  to  support 
the  finding  that  pneumonia  was  the  contributing  cause  of  death.27 

Where  the  verdict  of  the  corner's  jury  was  introduced  in  evi- 
dence this  was  held  to  be  sufficient  to  sustain  an  award,  where  it 
showed  that  traumatic  pneumonia  resulted  from  an  injury  sustain- 
ed by  decedent  when  he  fell  from  a  wagon  which  he  was  driv- 
ing for  plaintiff  in  error.28 

Where  a  brewery  employee  slipped  and  fell,  dislocating  his 
clavicle,  was  operated  on  three  days  later  and,  due  to  a  weakened 
condition  of  his  system  brought  on  by  the  operation,  he  develop- 

23.  Landers  v.  City  of  Muskegon,  196  Mich.  750,  163  N.  W.  43,  14  N. 
C.  C.  A.  947. 

24.  Brown  v.  WaUon,  7  B.  W.  C.  C.  259. 

25.  Alloa  Coal  Co.  v.  Drylie,  6  B.  W.  C.  C.  398;  Smith  v.  McPhee  etc. 
Co.,  1  Cal.  Ind.  Ace.  Com.  197. 

26.  Decormier  v.  Western  Indemnity  Co.,  2  Cal.  Ind.  Ace.  Com.  756,  12 
N.  C.  C.  A.  326. 

27.  Vogeley  v.   Detroit  Lumber  Co.,   196  Mich.   516,   162   N.  W.   975; 
Marlmen  v.  Record  P  &  M.  Co.,  106  Atl.  606,  4  W.  C.  L.  J.  205. 

28.  Armour  ft  Co,  v.  Industrial  Board  of  111.  273  111.  590,  113  N.  E.  138. 

437 


§  232  WORKMEN'S  COMPENSATION  LAWS. 

ed  hypostatic  pneumonia  and  died  from  its  effects,  it  was  held 
that  death  resulted  from  the  injury.29 

A  healthy  workman,  employed  on  a  ship,  went  to  work  at  one 
o'clock,  and  at  three  climbed  up  the  ladder  of  the  hold,  appar- 
ently in  great  pain.  Marks  were  found  on  his  ribs.  He  died 
three  days  later  from  pneumonia,  caused,  by  the  injury  to  his  side, 
according  to  medical  testimony.  It  was  held  that  the  death  was 
due  to  the  injury  by  accident,  and  compensation  was  awarded."0 

"Where  a  caretaker  of  a  large  mansion  fell  down  stairs,  and 
pneumonia  developed  from  the  injuries,  and  he  died  without  re- 
gaining consciousness,  compenation  was  allowed.31 

Where  a  lumberman,  who  was.  confined  to  the  hospital  because 
of  a  fracture  of  his  leg,  developed  pneumonia  and  died,  the  death 
being  hastened  by  his  poor  physical  condition,  brought  about  by 
the  confinement  and  inaction,  it  was  held  that  the  pneumonia  and 
consequent  death  was  due  to  the  injury.32 

"Where  a  workman  was  thrown  from  his  horse  while  hunting, 
and  was  wet  to  the  skin,  and  because  of  loss  of  vitality,  cause-1 
'  by  the  fall,  took  pneumonia  and  died,  the  accident  was  the  direct 
cause  of  his  death.33 

Where  two  doctors  testified  that  pneumonia,  causing  the  death 
of  a  workman  four  years  after  an  accident  to  him,  was  due  in- 
directly to  the  accident,  and  two  testified  that  the  disease  was 
due,  to  lowered  vitality  caused  by  the  accident,  it  was  held  that 
the  death  was  irot  due  to  the  accidental  injury.3* 

29.  Cantwell  v.  Travelers  Ins.    Co.,  2    Mass.    I.    A.  Bd.  246. 

30.  Lovelady  v.  Berrie  (1909),  2  B.  W.  C.  C<  62;  Roman  v.  Boardman 
River  Elect.  Co.,  200  Mich.  206,  166  N.  W.  860,  17  N.,  C.  C.  A.  790,  1  W. 
C.  L,  J.  1043. 

31.  Skelton  Ace.  Ins.  Co.,    Mass.  Wkm.  Comp.  Cas.  No.  2336  Nov.  3, 
1915,  12  N.  C.  C.  A,  656. 

32.  Majeau  v.  Sierre  Nevada  Wood  and  Lumber  Co.,  2  Cal.  I.  A.  C.  D. 
443. 

33.  In  Re  Etherington  &  Lancashire  &  Yorkshire  Ace.  Inc.  Co.,  1909  K. 

B,  591,  C.  A. 

34.  Taylor  v.  Framewellgate  Coal  &  Coke  Co.,  Ltd.  (1913)  6  B.  W.  C. 

C.  56,  C.  A. 

438 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   232 

A  workman,  who  was  suffering  from  a  hernia  resulting  from 
an  accident,  was  operated  upon,  but  because  of  his  weakened 
condition  only  an  old  hernia  was  operated  on.  Later  another 
operation  was  performed,  and  while  convalescing  from  the  ef- 
fects of  this  operation  he  contracted  pneumonia  and  died.  His 
death  was  held  to  be  due  to  the  injuries  sustained  in  his  employ- 
ment.85 

Where  a  workman  died  of  septic  pneumonia,  resulting  from 
^ystemic  sepsis,  which  developed  from  a  wound  received  while 
firing  an  oven  in  defendant's  bakery,  compensation  was  allowed 
for  the  injury.88 

A  workman,  who  was  wet  through  while  fighting  fire,  continu- 
ed work  for  twenty  days  thereafter,  and  then  died  from  lobar 
pneumonia.  Evidence  showed  that  he  had  no  fever  prior  to  tlie 
day  before  his  death,  and  that  he  had  been  exposed  to  bad  weath- 
er in  the  meantime.  It  was  held  that  the  pneumonia  was  not  due 
to  the  exposure  while  fighting  fire.37 

Where  an  employee  developed  pneumonia  as  a  result  of  an 
automobile  trip  he  had  taken  while  convalescing  from  an  injury 
to  his  ankle,  it  was  held  that  the  pneumonia  resulted  from  the 
injury  received  in  the  course  of  employment.38 

Lowered  vitality  following  injury  to  the  chest  cavity  or  to 
other  parts  of  the  body  terminated  in  death  from  pneumonia  in 
five  dases,  the  awards  of  which  the  Appellate  Division  affirmed 
unanimously  and  without  opinion,  to-wit:  a  laborer  who  strained 
liis  cade  by  heavy  lifting  and  walked  home  through  cold  and 
snow  ;39  an  aged  workman  who  slipped,  fell  and  hurt  his  hand  an.i 
arm,  infection  resulting;40  a  shoe  treer,  whose  exertion  and 

35.  Moore  v.  William  Harkins  &  Sons,  4  N.  Y.  S.  Dep.  Rep.  383. 

36.  Reck  v.   Whittlesberger,  181  Mk-h.  463,  148  N.  W.  247,  Ann.  Cas. 
1916  C.  771. 

37.  Lledman  v.  Chelsea  Fiber  Mills,  The  Bulletin  N.  Y.  Vol.  1,  No.  10, 
PK.  16. 

38.  Bergstrom  v.  Indus.  Com.  286  111.  29.  121  N.  E,  195. 

39.  Goeppner  v.  Henning,  S.  D.  R..  Vol.  11,  p.  603,  Nov.  20,  1916,  178 
App.  Div.  943,  May  2,  1917. 

40.  Sturges  v.  King  Sewing  Machine  Co.,  Death  File,  No.  18933,  May 
29,  1917,  181  App.  Div.  911,  Nov.  14,  1917. 

439 


§  232  WORKMEN'S  COMPENSATION  LAWS. 

bending  over  his  work  caused  a  hernia;41  a  laiboirer  who  cut  his 
little  finger  while  washing  bottles,  infection  resulting  ;42  and  a  coal- 
hoist  engineer  who  sprained  his  ankle  in  a  complete  somersault  over 
a  stair  railing,  while  descending  to  get  his!  pay  envelope  .43 

"Where  an  employee  accidentally  fell  upon  the  floor  and  received 
a  blow  upon,  the  chest,  'which  later  caused  pneumonia,  it  was  held 
to  be  an  industrial  injury,  and  compensation  was  awarded.44 

Pneumonia  following  a  scratch  on  the  hand  from  a  rusty  pipe, 
was  held  to  be  oompensable.45 

Pneumonia  causing  death,  resulting  from  eqtposure  to  cold  while 
storing  frozen  meats  in  a  refrigerating  room,  has  been  held  not  to 
be  an  industrial  injury  within  the  meaning  of  the  act.46 

Where  an  employee  received  an  injury  to  his  ankle  by  a  wagon 
passing  over  it,  and  developed  pneumonia,  from  which  he  died  12 
days  later,  it  was  held  that  a  casual  connection  was  established  be- 
tween the  injury  and  the  cause  of  the  death.  4T 

Pneumonia  following  from  wet  feet  in  a  leaky  boat,  was  held  to 
be  compensable.48 

Compensation  was  awarded  for  the  death  of  an  employee,  result- 
ing from  pneumonia,  contracted  as  ai  result  of  an  injury  sustained 
when  he  fell  out  of  a  window,  which  he  was  tryng  to  open.49 

An  employee  received  an  injury  ,to  his  finger  necessitating  am- 
putation- After  recovery  from  the  effects  of  the  operation  he  re- 
turned to  work  and  contracted  pneumonia,  from  which  he  died. 
Compensation  was  denied  because  of  lack  of  proof  showing  any 
connection  between  the  injury  and  the  cause  of  death.50 

41.  Coons  v.  Endicott  Johnson  &  Co.,  S.  D.  R.,  Vol.  14,  P.  565,  Btfl. 
Vol.  2,  p.    203,  1917,  181  App.  Div.  963,  Dec.  28,  1917. 

42.  Rodgers  v.   Bordens   Condensed   Milk  Co.,   Death  File.   No   27351, 
July  13,  1917,  182  App.  Div.  906,  Jan.  18,  1918. 

43.  Graham  v.  Brooklyn  Union  Gas.  Co.,  Death  Case  No.  10594,  Jan. 
2,  1918;  — ,  App.  Div.  —  March  15,  1918., 

44.  Cledou  v.  Hof  Brau  Cafe,  (1916),  3  Cal.  I.  A.  C.  233. 

45.  Coyle  v.   Mass.  Employees/  Ins.  Assn.  —  2 'Mass.  I.  A.  Bd.  704. 

46.  Hoefer  v.  Matson  Nav.  Co.  (1916),  3  Cal.  I.  A.  C.  194. 

47.  Costello  v.  U.  SI  Oas.  Co.,  1  Mass.  I.  A.  Bd.  265. 

48.  Stone  v.  Travelers  Ins.  Co.,  li  Mass.  Ind.  A.  Bd.  470. 

49.  Dodd  v.  Lancashire  Corp.,  9  N.  Y.  St.  Rep.  281. 

50.  Stanley  v.  Wood,  6  N.  Y.  St.  Dep.  Rep.  382. 
440 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   233 

"Where  death  resulted  from  lobar  pneumonia  caused  by  a  game 
protector  immersing  his  arm  and  shoulder  in  the  water  to  remove 
a  plug,  while  fixing  a  boat  for  winjter  quarters,  his  death  was  held 
to  be  due  to  an  accidental  injury.  "  'Accident'  meaning  an  unde- 
signed and  unforeseen  occurrence  of  an  afflictive  or  unfortunate 
character,  and  'injure'  meaning  to  harm,  or  to  inflict  damage  or 
detriment."61 

§  233.  Proof  of  Accident. — ' '  It  is  settled  by  our  decisions  that 
before  an  employee  is  entitled  to  recover  compensation  he  must  es- 
tablish the  fact  that  he  received  an  accidental  injury  which  arose 
out  of  and  in  the  course  of  his  employment."  It  was  so  held 
where  an  employee  suffered  a  right  inguinal  hernia  while  assisting 
in  lifting  a  heavy  timber,  but  there  was  no  evidence  that  he  slip- 
ped or  fell  or  was  struck  by  the  timber  while  lifting  it. BS 

"It  is  not  necessary  that  some  witness  should  testify  to  seeing 
an  accident  arising  out  of  and  in  the  course  of  employment,  if  it  is 
shown  in  some  way  that  while  the  employee  is  at  work  there  has 
been  a  recent  accident  or  some  circumstances  tending  to  show  the 
fact.  Peoria  Cordage  Co.  v.  Industrial  Board  of  Illinois,  284  111. 
<>0,  17  N.  C-  C.  A.  245,  1J9  N-  E.  996  (1918).  "The  employee  is 
not  required  to  prove  the  exact  cause  of  his  injury.  It  muvt 
happen  in  the  course  of  his  employment  and  it  must  arise  out  of  it. 
These  facts  must  not  be  left  to  mere  surmise  and  conjecture;  but 

51.  Christian  v.  State  Conservation  Commission,  -  -  App.  Div.  — , 
1920,  182  N.  Y.  Supp.  347,  6  W.  C.  L.  J.  199. 

Additional  cases  in  which  it  was  held  that  there  did  exist  a  causal 
connection  between  the  injury  and  the  pneumonia  causing  the  workman's 
death. 

Bayne  v.  Riverside  Storage  &  Cartage  Co.,  181  Mich.  378,  148  N. 
W.  412;  Zabriskie  v.  Erie  R.  Co.,  86  N.  J.  Law,  266.  92  Atl.  385.  L  .R.  A. 
1917A.  315;  Sexton  v.  Newark  Dist.  Telegraph  Co.,  84  N.  J.  Law,  85. 
86  Atl.  451,  affirmed  86  N.  J.  Law,  701,  91  Atl.  1070;  Bryant  v.  Pissell. 
84  N.  J.  Law,  72,  86  Atl.  458;  Hulley  v.  Moosbrugger.  88  N.  J.  Law,  161.  95 
Atl.  1007,  L.  R.  A.  1916C,  1203;  Jackson  v.  Erie  R.  R.  Co..  86  N.  J.  Law. 
650,  91  Atl.  1035;  Delaware,  L.  &  W.  R.  R.  Co.  v.  Hardy,  59  N.  J.  TAW, 
35,  34  Atl.  986. 

53.  Tackles  v.  Bryant  ft  Detwiler  Co.,  200  Mich.  350.  167  N.  W.  36, 
1  W.  C.  L.  J.  1031;  In  re  Henry  C.  Smith,  3rd  A.  R.  U.  8.  C.C.  105. 

441 


§  233  WORKMEN'S  COMPENSATION  LAWS. 

it  is  not  essential  that  he  should  prove  the  precise  cause  which  pro- 
duced the  injury."  Beans  Case,  227  Mass.  558,  116  N.  E.  826 
(1917).  The  evidence  and  the  inferences  that  may  fairly  and  rea- 
sonably be  drawn  therefrom  must  sustain  the  finding  of  a  compen- 
sable  accident  without  the  necessity  of  resorting  to  inferences 
drawn  from  other  inferential  facts.54 

Where  there  was  no  direct  proof)  of  suicide,  the  presumption 
against  it  in  favor  of  an  accident  is  sufficient  to  sustain  an  award, 
where  an  elevator  operator  was  found  dead  at  the  bottom  of  an 
elevator  pit. 55 

Where  a  seaman  disappeared  overboard  from  a  deck  that  had  a 
three  and!  one-half  foot  railing  around  it,  the  court  said  that  in 
spite  of  the  presumption  against  suicide,  he  was  unable  under  the 
circumstances  to  infer  "that  death  of  the  deceased  was  due)  to  an 
accident.  "53 

It  was  held  that  the  claimant  had  not  sustained  the  burden  of 
proving  that  deceased's  hernia,  from  which  he  died  arose  out 
of  the  employment  and  was  caused  by  some  violent  physical  exer- 
tion and  these  facts  could  not  be  inferred  from  the  mere  fact  that 
he  was  engaged  in  heavy  work.  The  hearsay  testimony  of  a  fellow 
workman  was  held  not  competent.57 

' '  It  was  not  necessary  for  the  dependent  to  exclude  the  possibili- 
ty that  her  husband's  death  might  have  been  due  to  an  apoplectic 
shock,  as  suggested  by  the  insurer  but  only  to  satisfy  the  board 
by  a  fair  preponderance  of  the  evidence  that  it  was  due  to  a  fall 
from  the  trestle.  Such  an  external  accident  is  indicated  by  all 
the  facts  and  supported  by  the  age  and  physical  condition  of  the 
employee  when  see'n  a  few  minutes  before  he  was  found  under 
the  trestle."58 

54.  New  Castle  Foundry  Co.  v.  Lysher  (Ind.  App.)  120  N.  E.  713. 

55.  Wishaless  v.  Hammond;  Standish  &  Co.,  201  Mich.  192,  Ii66  N.  W . 
993.  Westmans  Case  118  Me.  133, 106  Atl.  Rep.  532,  4  W.  C.  L.  J.  213,  (1919) 
But  see  Grand  v.  Fleming  Bros.  Co.,  — la. — ,  176  N.  W.  640,  5  W.  C.  L.  J. 
688. 

56.  Rourke  v.  Holt  &  Co.  W.  C.  &  Ins.  Rep.  51  Ir.  L.  T.  121. 

57.  Chicago  &  A.  R.  Co.  v.  Industrial  Bd.  of  111.,  274  111.  336,  113  N.  E. 
629,  14  N.  C.  C.  A.  542. 

58.  In  re  Uzzio  228  Mass.  331,  117  N.  E.  349,  17  N.  C.  C.  A.  255. 
442 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    234 

Accident  cannot  be  proved  by  hearsay  testimony  alone.89 

Proof  of  an  accident  must  be  based  upon  something  more  than 
a  mere  guess,  conjecture  or  surmise,  though  it  may  be  proved  by 
circumstantial  as  well  as  direct  evidence.60 

"The  record  does  disclose  that  the  deceased  sustained  an  in- 
jury, and  during  his  disability  received  compensation;  but  it  is 
further  incumbent  upon  the  claimant  to  show,  by  competent  evi- 
dence from  which  fair  inference  could  be  drawn,  that  his  death 
resulted  from  the  injury.  This  the  claimant  has  failed  to  do,  and 
compensation  for  the  death  must  therefore  be  denied."61 

Where  it  was  entirely  a  matter  of  conjecture  as  to  whether  an 
employee  had  fallen  and  suffered  his  injuries  as  a  result  of  a 
slight  dizziness  that  occasionally  seized  him,  or  had  fallen  over 
some  nails,  the  court  reversed  the  finding  in  claimant's  favor.82 

"When  the  employee  dies  at  his  post  of  duty,  a  presumption 
may  reasonably  be  entertained  that  he  was  then  performing  his 
duty  and  engaged  in  the  work  for  which  he  was  employed,  from 
which  a  causal  relation  between  his  employment  and  the  accident 
may  be  inferred."** 

§  234.  Proximate  Cause. — In  so  far  as  the  disability  of  the 
employee  is  the  natural  consequence  of  the  accident  compensation 
should  be  awarded;  but  in  so  far  as  it  is  due  to  the  "employee's 

68.    McCauley  v.  Imperial  Woolen  Co.,  261  Pa.  312,  104  Atl.  617. 

60.  Peoria  Ry.  T.  Co.  v.  Indus.  Bd.  of  111.,  279  111.  352,  116  N.  E.  651, 
15  N.  C.  C.  A.  632;  Ohio  Building  Vault  Co.  v.  Indus.  Bd.  277  111.96,  115  N. 
E.  149,  14  N.  C.  C.  A.  224;     Swift  &   Co.   v.    Indus.   Comm     287   111.    564, 
122  N.  E.  796,  4  W.  C.  L.  J.  35  (1919) 

61.  Perry  v.  Wood-ward  Bowling  Alley  196  Mich.  742,  163  N.  W.  52, 
L.  R.  A.  1916  A,  p.  133;  Retmierv.  Cruse  (Ind.  App.)  119  N.  E.  32, 1-W.C. 
L.  J.  971. 

62.  Wilson  v.  Phoenix  Furniture  Co.,  201  Mich.  531,  167  N.  W.  839, 
17  N.  C.  C.  A.  785. 

63.  Hills  v.  Blair,  182  Mich.  22,  148  N.  W.  243,  Bemel  etc.  Co.  v.  Loper. 
64  Ind.  App.  — ,  117  N.  E.  527;  Papinaw  v.  Grand  Trunk  etc.  Co.,  189  Mich. 
448,  155  N.  W.  545;  Wishcalees  v.  Hammond,  201  Mich.  192.  166  N.  W. 
933;     Mailman  r.  Record  P.  &  M.  Co.  118  Me.  172,  106  Atl.  606,  4  W.  C. 
L.  J.  205,  (1919). 

443 


§  234  WORKMEN'S  COMPENSATION  LAWS. 

own  wilful  refusal  to  submit  himself  to  a  safe  and  simple  medical 
treatment,"  compensation  should  be  denied.64 

"The  evidence  was  that  an  operation  for  the  removal  of  a  cata- 
ract is  neither  serious  nor  dangerous  to  an  ordinary  person  in 
good  health  and  a  very  large  majority  of  such  operations  are  suc- 
cessful. *  *  *  The  question  was  whether  the  total  loss  of  sight 
was  attributable  to  the  accident,  which  caused  the  slow  growth  of 
a  cataract,  or  to  an  unreasonable  refusal  to  have  the  cataract, 
which  caused  the  loss  of  vision,  removed.  *  *  *  Under  the 
finding  the  loss  of  sight  should  be  attributed  to  such  refusal  and 
not  to  the  accident. ' ' 65 

"Before  the  defendant  is  to  be  charged,  in  law  or  morals,  with 
the  duty  to  compensate  him,  the  claimant  shall  first  discharge  the 
primary  duty  owing  to  himself  and  society  to  make  use  of 
every  available  and  reasonable  means  to  make  himself  whole. 
This,  in  our  opinion,  he  has  not  done,  and  the  defendant  seems 
to  have  discharged  the  burden  of  proving  that  the  claimant's 
refusal  to  submit  to  the  operation  to  relieve  him  is  unreason- 
able."66 

Where  the  result  of  a  proposed  operation  was  problematical 
the  court  held  that  it  could  not  be  said  that  .the  applicant  acted' 
in  a  willful,  unreasonable  or  negligent  manner,  and  therefore 
that  compensation  should  not  under  the  circumstances  be  re- 
duced or  terminated  because  of  his  failure  to  undergo  the  proper 
operation.67 

"Under  the  law  in  force  prior  to  the  workmen's  compensation 
act  the  principle  was  well  established  that  a  person  injured  by 
the  negligence  of  another  must  use  ordinary  care  to  avoid  ag- 
gravating or  prolonging  the  effects  of  such  injury,  and  that  he 

64.  Lesih  v.  Illinois  Steel  Co.,  163  Wis.  124,  157  N.  W.  53:9,  15  N.  C.  C. 
A.  80. 

65.  Joliet  Motor  Co.  v.  Indus  Bd.  of  111.,  280  111.  148,  117  N.  E.  423,  15 
N.  C.  C.  A.  75. 

66.  Kricinovitch  v.  American  Car  &  Foundry  Co.,  192  Mich.  687,  159 
N.  W.  362,  15  N.  C.  C.  A,  80. 

67.  Marshall  v.  Ransome  Concrete  Co ,  33  Cal.  App.  782,  166  Pac.  846, 
15  N.  C.  C.  A.  82,  Bruce  v.  Taylor  &  Maliskey,  192  Mich.  34;  158  N.  W. 
153. 

444 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   234 

cannot  recover  for  an  increase  of  disability  caused  by  his  failure 
to  use  such  care.  *  *  *  An  additional  injury  to  McCay, 
caused  by  carelessly  using  his  arm  too  soon,  is  as  much  a  new  in- 
jury not  within  the  terms  of  the  constitution  or  statute,  as  if  it 
had  occured  by  accident  The  commision,  upon  the  facts 
shown,  was  therefore  without  power  to  award  compensation  for 
the  additional  disability.68 

Where  there  is  conflict  in  the  testimony  as  to  whether  the  ac- 
cident or  some  independent,  intervening  cause  or  disease  is  the 
proximate  cause  of  the  disability  or  death,  and  the  industrial 
board  finds  as  a  fact  that  one  or  the  other  was  the  proximate 
cause  that  finding  will  not  be  disturbed  by  the  court  on  appeal.60 

Claimant's  deceased  fell  in  the  course  of  his  employment  and 
sustained  a  severe  fracture  of  his  leg.  Two  days  later  he  suffered 
an  attack  of  delirium  tremens,  from  which  he  died.  It  was  eon- 
tended  that  the  delirium  tremens  and  not  the  injury  was  the  proxi- 
mate cause  of  the  death.  The  court  said :  ' '  The  fact  that  his  sys- 
tem had  been  so  weakened  by  his  intemperate  habit  that  it  was 
unable  to  withstand  the  effects  of  the  injury  does  not  thereby 
shift  the  proximate  cause  of  death  from  his  injury  to  his  intem- 
perate habit."  It  appeared  that  the  tremens  would  not  have  De- 
veloped had  it  not  been  for  the  injury  and  the  shock  following 
it.70 

Where  particles  of  steel  lodged  in  the  eye  of  a  lathe  operator, 
and  the  eye  became  infected  with  gonorrhea,  it  was  held  that  the 
loss  of  the  eye  was  due  to  rubbing  it  with  claimant's  fingers  on 
«  • 

68.  Pacific  Coast  Casualty  Co.  v.  Pillsbury,  171  Cal.  319,  153  Pac.  24, 
15  N.  C.  C.  A.  83. 

69.  Vogley  v.  Detroit  Lumber  Co.,  196  Mich.  516,  162  N.  W.  975,  14  N. 
C.  C.  A.  142;    Linstendt  v.  Louis  Sands  Salt  &  Lumber  Co.,  190  Mich.  451, 
157  N.  W.  64,  14  N.  C.  C.  A.  142;    Deem  v.  Kalamazoo  Paper  Co.,  189  Mich. 
655,  155  N.  W.  584,  14  N.  C.  C.  A.  143;    La  Fleur  v.  Wood,  178  App.  Div. 
397,  164  N.  Y.  Supp.  910,  14  N.  C.  C.  A.  143;   Tanner  v.  Aluminum  Castings 
Co.,  —  Mich.  — ,  (1920),  178  N.  W.  69,  6  W.  C.  L.  J.  337;   Jackson  v.  Indus. 
Comm.,  —  Cal.  App.  — ,  (1921),  191  Pac.  719. 

70.  Ramlow  v.  Moon  Lake  Ice  Co.,  192  Mich.  605,  158  N.  W.  1027,  L.  R. 
A.  1916F.  955,  14  N.  C.  C.  A.  295. 

445 


§  234  WORKMEN'S  COMPENSATION  LAWS. 

which  were  gonorrhea  germs,  and  was  not  proximately  due  to  the 
accidental  injury.71 

"The  personal  injury  must  be  the  result  of  the  employment 
and  flow  from  it  as  the  inducing  proximate  cause.  The  rational 
mind  must  be  able  to  trace  the  resultant  personal  injury  to  a 
proximate  cause  set  in  motion  by  the  employment  and  not  by 
some  other  agency,  or  there  can  be  no  recovery.  The  direct  con- 
nection between  the  personal  injury  as  a  result  and  the  employ- 
ment as  its  proximate  cause  must  be  proved  by  facts  before  the 
right  to  compensation  springs  into  being.  A  high  degree  of  dis- 
crimination must  be  exercised  to  determine  whether  the  real 
cause  of  an  injury  is  disease  or  the  hazard  of  the  employment.  ,  A 
disease  which  under  any  rational  work  is  likely  to  progress  so  as 
finally  to  disable  the  employee  does  not  become  a  'Personal  in- 
jury' under  the  Act  merely  because  it  reaches  the  point  of  dis- 
ablement while  work  for  a  subscriber  is  being  pursued.  It  is 
only  when  there  is  a  direct  casual  connection  between  the  excf- 
tion  of  the  employment  and  the  injury  that  an  award  of  com- 
pensation can  be  made.  The  substantial  question  is  whether 
the  diseased  condition  was  the  cause  or  whether  the  employment 
was  a  proximate  contributing  cause.  In  the  former  case  no 
aAvard  can  be  made;  in  the  latter,  it  ought  to  be  made."72 

"It  is  a  principle  of  very  general  application  that  the  industry 
should  be  chargeable  only  with  those  consequences  arising  out  of 
accidents  which  are  proximate  and  direct,  and  can  not  be  held 
chargeable  under  the  law  as  it  now  stands  for  disabilities  which 
are  only  remotely  consequent  upon  the  injuries."73 

A  conflict  of  authority  exists  on  the  question  of  allowing 
compensation  beyond  the  normal  period  of  disability  for  the  par- 
ticular injury,  where  the  continuing  disability  is  proximately  due 
to  some  subsequent  separate  or  supervening  cause.  "This  cora- 

71.  McCoy  v.  Michigan  Screw  Co.,  180  Mich.  454,  147  N.  W.  57-2,  5  N. 
C.  C.  A.  455. 

72.  In  re  Madden,  222  Mass.  487,  111  N.  EL  379;  Pacific  Coast  Casualty 
Co.  v.  Pillsbury,  171  Gal.  319,  153  Pac.  24. 

73.  Masich  v.  Northwestern  Pac.  R.  Co.,  2  Cal.  Ind.  Ace.  Com.  539 ;    In 
re  Grafton  Harcus,  3rd  A.  R.  U.  S.  C.  C.  130;   Jackson  v.  Indus.  Comm., 

-  Cal.  — ,  (1921)  195  Pac.  719. 
446 


PERSON  U.   INJURY  OR  DEATH  BY  ACCIDENT.  §   237 

mission  has  already  held  that,  where  recovery  from  injury  Is  de- 
layed by  the  effect  of  tuberculosis,  syphilis  or  chronic  varicose 
ulcers,  compensation  should  be  allowed  only  for  the  period  for 
which  the  injury  complained  of  would  disable  a  person  of  average 
conditions  not  suffering  from  any  of  these  diseases.  These  ex- 
ceptions control  the  present  case,  and  it  is  therefore  decided  that 
applicant  is  not  entitled  to  a  continuance  of  the  temporary  total 
disability  payments-  from  and  after  the  2d  day  of  August,  1914, 
this  date  being  the  expiration  of  the  longest  period  clearly  indi- 
cated by  the  medical  testimony  in  this  case  as  the  period  during 
which  applicant's  disability  would  probably  have  continued  if  lie 
had  been  free  from  tuberculosis."74 

The  above  rule  which  is    followed  by    the    California,    Mas-; 
chusetts,  and  Connecticut  commissions  is  contrary  to  that  of  the 
Supreme  Courts  of  Michigan,  New  York,  Indiana,  and  the  En- 
glish cases."    (See  Connecticut  Act  §  5341  Am.  1921.) 

Paralysis  from  apoplectic  stroke,  three  hours  after  a  severe  fail, 
was  held  to  have  been  proximately  caused  by  the  fall.76 

Where  death  resulted  from  tubercular  pneumonia  following  an 
anaesthetic  for  hernia  operation,  the  death  was  held  to  have  been 
proximately  caused  by  the  injury.  The  commission  held  that  the 
employer  took  the  deceased  subject  to  his  tubercular  condition  at 
the  time  of  entering  the  employment,  though  the  evidence  showed 
that  the  deceased  had  at  some  time  in  his  life  before  sustaining  the 
hernia  suffered  from  tuberculosis,  it  had  become  quiescent  and 
caused  him  no  disability  until  the  hernia  operation  lighted  up  the 
old  condition  and  caused  the  death.77 

74.  Van  Dalsem  v.  Di  Frore    &  Pac.     Coast  Casualty    Co.,  1  Cal.  Ind.  Ace. 
Com.  (part  2)  229;    Johnson  v.  Lowe.  2  Cal.  Ind.  Ace.  Com.  543;    Ash  v. 
Barker,  2  Cal.  Ind.  Ace.  Com.  40;    Telford  v.  Healy — Tibbetts  Const.  Co., 
3  Cal.  Ind.  Ace.  Com.  41;    Hatch  v.  I.  Newman  &  Sons,  1  Conn.  Comp.  Dec. 
65;   Jones  v.  Fidelity  &  Deposit  Co.,  2  Mass.  Ind.  Ace.  Bd.  301. 

75.  See  aggravation  of  pre-existing  condition.    Hills  v.  Oval  Wood  Dish 
Co.,  191  Mich.  411,  158  N.  W.  214,  and  Borgsted  v.  Shults  Bread  Co.,  180 
App.  Dlv.   229,  167  N.  Y.  S.   647,  1   W.  C.  L.  J.  666. 

76.  Selaya  v.  Ruthven  and  Cerrana,  5  Cal.  Ind.  Ace.  Com.  238. 

77.  Cox  et  al.  v.  California  Southern  R,  R.  Co.  et  al.,  5  Cal.  Ind.  Ace. 
Com.  10. 

447 


§  237  WORKMEN'S  COMPENSATION  LAWS. 

Tn  another  case  where  the  tuberculosis  was  not  discovered  until 
the  employee  suffered  an  accidental  injury,  though  the  medical 
testimony  was  to  the  effect  that  the  disease  was  sufficiently  ad- 
vanced to  have  caused  the  death  in  a  few  days  had  no  injury  been 
sustained,  the  commission  held  that  the  death  was  not  proximately 
caused  by  the  injury.78 

' '  "While  it  may  be  true  that  over-exertion  in  climbing  the  ladder 
and  closing  the  valve  was  the  moving  cause  of  decedent's  death, 
yet  his  death  would  never  have  occurred  if  it  had  not  been  for 
his  impaired  heart.  Under  section  one  of  the  Act,  the  burden  of 
proof  .is  upon  the  plaintiff  to  show  not  only  that  the  accident  arose 
out  of  and  in  the  course  of  the  employment,  but  in  addition  that 
the  death  of  the  plaintiff  was  not  the  result  of  pre-existing  dis- 
ease."79 

"Proximate  cause  as  applied  to  negligence  law  has,  by  defini- 
tion, included  within  it  the  element  of  reasonable  anticipation. 
Such  element  is  a  characteristic  of  negligence,  not  of  physical 
causation.  As  long  as  it  was  necessary  to  a  recovery  to  have  a 
negligent  act  stand  as  the  cause  of  an  injury,  it  did  no  harm  to 
characterize  causation  in  part,  at  least,  in  terms  of  negligence. 
But  when,  as  under  the  compensation  act,  no  act  of  negligence  is 
required  in  order  to  recover,  the  element  of  negligence,  namely, 
reasonable  anticipation  contained  in  the  term  'proximate  cause,' 
must  be  eliminated  therefrom,  and  the  phrase  where  the  injury  is 
proximately  caused  by  accident,'  used  in  the  statute,  must  be  held 
to  mean  caused  in  a  physical  sense,  by  a  chain  of  causation,  which, 
both  as  to  time,  place  and  effect,  is  so  closely  related  to  the  acci- 
dent that  the  injury  can  be  said  to  be  proximately  caused  thereby. 
To  incorporate  into  the  phrase  'proximately  caused  by  accident' 
all  the  conceptions  of  proximate  cause  in  the  law  of  negligence 
would  be  to  lug  in  at  one  door  what  the  legislature  industriously 
put  out  at  another.  Proximate  cause,  under  the  law  of  negligence, 
always  has  to  be  traced  back  to  the  conduct  of  a  responsible, 
human  agency ;  under  the  compensation  act  the  words  '  Proximately 
caused  by  accident'  in  terms  relate  to  a  physical  fact  only;  namely, 
an  accident.  Hence  if  the  injury  or  death  can  be  traced  by 

78.  Scott  v.  Birch  Oil  Co.  et  al.,  5  Cal.  Ind.  Ace.  Com.  197. 

79.  Rusch  v.  Louisville  Water  Co.,  2  Ky.  L.  Dec.  152,  (Jan.  1919). 
448 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    237 

physical  causation  not  too  remote  in  time  or  place  to  the  accident, 
thru  such  injury  or  death  was  proximately  caused  by  the  accident, 
irrespective  of  any  element  of  reasonable  anticipation."80 

It  has  been  held  that  the  accidental  injury  no-d  not  be  the 
sole  cause  of  his  death,  in  order  1o  entitle  his  dependents  to 
compensation  but  it  is  sufficient  if  it  be  a  concurring  cause.80* 

§  235.  Quarantine. — Time  lost  because  of  quarantine  for  u 
disease  of  a  fellow  employee  is  not  compensable  under  the  Federal 
Act.81 

§  236.  Rash. — In  a  New  Jersey  case,  where  an  employee  had 
worked  in  a  bleachery  for  ten  days  when  he  was  affected  with  a 
rash,  pronounced  to  be  a  condition  of  ezcema  which  might  have 
resulted  from  the  acids  used  in  the  bleachery,  the  court  said :  "The 
English  courts  seem  at  last  to  have  settled  that  where  no  specific 
time  or  occasion  can  be  fixed  upon  as  the  time  when  the  alleged 
accident  happened,  there  is  no  'injury  by  accident'  within  the 
meaning  of  the  act.  This  seems  a  sensible  working  rule,  especially 
in  view  of  the  provisions  of  the  statute  requiring  notice  in  certain 
cases  within  fourteen  days  of  the  occurrence  of  the  injury,  a  pro- 
vision which  must  point  to  a  specific  time."82 

§  237.  Recurrence  of  Condition  Due  to  Former  Injury.— 
Where  a  physician  furnished  by  the  employer  discharged  an 
employee  as  cured,  but  the  disability  had  not  fully  terminated 
and  the  employee  had  to  seek  further  treatment  from  his  own 
physician,  compensation  for  the  additional  surgical  services 
was  allowed.83 

80.  Milwaukee  v.  Industrial  Commission,  160  Wis.  238,  151  N.  W.  247; 
Print  Motor  Car  Co.  v.  Industrial  Comm.,  1618  Wis.  436,  170  N.  W.  285,  'i 
W.  C.  L.  J.  399.    See  Blood  Poison. 

80a.     Miami  Coal  Co.  v.  Luce  —  Ind.  App.— ,  131  N.  E.  824,  (1921). 

81.  In  Re  J.  P.  B.  Frederickson  &  Others,  2nd  A.  R.  U.  S.  C.  C.  222. 

82.  Liondale  Bleach,  Dye  &  Paint  Workj  v.  Riker,  85  N.  J.  L.  426,  89 
Atl.  929,  4  N.  C.  C.  A.  713. 

83.  Douglas  v.  J.  6  J.  Drug  Co.,  2  Cal.  Ind.  Ace.  Com.  164  (1915),  11 
N.  C.  C.  A.  761. 

449 
W.  C.— 29 


§  237  WORKMEN'S  COMPENSATION  LAW 

Where  an  employee,  who  suffered  from  a  dislocation  of  the 
shoulder,  was  discharged  in  two  weeks  by  the  physician  as  cured, 
and  at  once  sustained  another  dislocation  of  the  same  shoulder 
while  bathing,  compensation  was  allowed  for  the  disability  arising 
from  the  second  injury,  for  the  reason  that  the  second  physicial 
lapse  was  directly  caused  by  and  was  an  incident  of  the  previous 
injury.84 

Where  an  employee  seeks  a  recovery  for  a  recurrence  of  his 
disability,  he  must  show  that  his  condition  has  changed  from  that 
which  it  was  when  the  award  was  made  for  the  first  injury,  other- 
wise the  original  award,  in  the  absence  of  a  distinct  recurrence  of 
disability,  other  than  the  one  for  which  the  first  award  was  made, 
is  final,  and  the  petition  must  be  dismissed.85 

Where  an  employee  seeks  compensation  for  a  recurrence  of  an 
injury,  the  changes  occurring  in  his  condition  since  the  former 
hearing,  on  which  was  based  the  award  of  the  arbitrators,  is  all 
that  may  be  shown,  and    it  is  error  to  show  any  condition  exibt 
ing  previous  to  the  first  award.86 

Where  splints  were  removed  too  quickly  from  a  fractured  collar 
bone  and  the  bone  came  apart  again,  but  there  was  no  accident, 
it  was  held  that  this  extension  of  the  disability  was  merely  a  con- 
tinuation of  that  due  to  the  earlier  accident,  and  compensation 
was  allowed.87 

Where  an  employee,  who  broke  his  leg,  suffered  a  refracture 
while  putting  on  his  trousers,  and  later  suffered  a  further  fracture 
through  a  fall  on  the  sidewalk,  it  was  held  that  the  evidence  was 
sufficient  to  sustain  a  finding  that  the  fall  and  further  injury  were 
due  to  the  original  injury,  and  compensation  was  allowed.88 

84.  Kordellos  v.  N.  W.  Pac.  R.  Co.,  1  Cal.  Ind.  A.  C.  586   (1914),  11  N. 
C.  C.  A.  762;    In  Re  Ennis  B.  Helton,  3rd  A.  R.  U.  S.  C.  C.  111. 

85.  Bloomington  D.  &  C.  R.  Co.  v.  Indus.  Bd.  of  111.,  275  111.  120,  114 
N.  E.  511,  15  N.  C.  C.  A.  391;    Simpson  Construction  Co.  v.  Indus.  Bd.,  275 
111.  366,  114  N.  E.  138,  15  N.  C.  C.  A.  391. 

86.  Casparis  Stone  Co.  v.  Indus.  Bd.  of  111.,  278  111.  77,  115  N.  E.  822, 
15  N.  C.  C.  A.  390;    Cook  v.  Chas.  Hoertz  Sons,  —  Mich.  — ,  164  N.  W.  64, 
A.  1  W.  C.  L.  J.  888. 

87.  Stormont    v.    Bakersfield    Laundry    Co.,   1   Cal.   I.   A.   C.    (part   2) 
533. 

8C.     Bailey  v.  Indus.  Comm.,  286  111.  623,  122  N.  E.  107. 
450 


PERSONAL    IN.)  TRY    OR   DEATH     BY    ACCIDENT.  §    2'M 

Applicant  was  injured  by  having  his  foot  caught  between  a 
belt  and  a  pulley,  resulting  in  a  fracture  of  his  left  leg,  and  upon 
the  advice  of  the  attending  physician  he  returned  to  work  be- 
fore the  injury  had  entirely  healed,  and  on  his  way  home  from 
work  he  rebroke  his  leg.  It  was  held  that  there  was  really  not  a 
second  accident  but  that  the  rebreaking  of.  the  leg  was  a  direct  re- 
sult of  the  original  accident.  Compensation  was  continued.8" 

An  employee  received  an  in.jury  by  which  the  neck  of  the  temiu 
was  broken,  six  months  later,  while  exercising  his  leg  by  walking, 
as  directed  by  his  physician,  he  slipped  and  refractured  the  bone. 
The  bones  never  united  after  the  second  accident,  and  an  opera- 
tion had  to  be  performed.  The  operation  seemed  to  be  a  success, 
but  his  stomach  filled  with  gas  a  few  hours  thereafter,  his  hc.-u-t 
collapsed,  and  he  died.  The  industrial  accident  commission  award- 
ed a  death  benefit,  and,  affirming  the  award,  the  court  said:  ''The 
undisputed  facts  are  as  above  stated ;  and,  it  appearing  there- 
from that  Fleming  (deceased)  at  the  time  of  the  second  injury 
\\as  obeying  his  doctor's  instructions  to  exercise  his  le<r,  that  he 
fell  and  that  the  fibrous  connection  which  had  been  established 
was  torn  loose  at  the  point  of  the  previous  fracture,  are  circum- 
stances which  seem  to  us  to  be  conclusive  to  the  effect  that  this 
second  injury  arose  from  a  condition  produced  by  the  first  in- 
jury."90 

Where  an  employee  had  sustained  a  broken  arm  and  dislocat- 
ed wrist  while  cranking  an  automobile,  the  bones  had  knit  well 
and  he  was  making  a  satisfactory  recovery,  but  while  taking  an 
automobile  trip  the  partly  knit  bones  slipped  or  shifted,  prolong- 
ing disability,  the  court  denied  further  compensation,  hold  in;.: 
that  the  commission  had  no  power  to  grant  further  compensation, 
and  could  not  be  given  such  power  unless  the  subsequent  injury 
was  the  natural  and  proximate  result  of  the  first  injury.91 

89.  Reis8  v.  North  way  Motor  &  Mfg.  Co.,  201  Mich.  90,  166  N.  W.  840, 
1  W.  C.  L.  J.  1008,  16  N.  C.  C.  A.  550. 

90.  Shell  Co.  of  California  v.  Industrial  Ace.  Commission,  36  Cal.  App. 
463,  172  Pac.  611  (1918),  2  W.  C.  L.  J.  34;    Squire  Dingee  Co.  v.  Indus.  Bd. 
of  111.,  281  111.  359,  117  N.  E.  1031,  15  N.  C.  C.  A.  400;     In  Re  Roman 
Mamps.  2nd  A.  R.  U.  S.  C.  C.  244. 

91.  Pacific  Coast  Casualty  Co.  v.  Pillsbury.  171  Cal.  319,  153  Pac.  24,  16 
N.  C.  C.  A.  554. 

451 


§  238  WORKMEN'S  COMPENSATION  LAWS. 

Where  an  employee  sustained  a  spiral  fracture  of  the  leg,  and 
returned  to  work  before  he  had  completely  recovered  from  the  in- 
jury, and  sustained  a  second  injury,  in  allowing  compensation  for 
the  prolonged  disability  due  to  the  second  fracture,  the  court  said 
that  a  subsequent  accident  resulting  in  "further  disability," 
where  not  the  result  of  lack  of  ordinary  care  of  the  injured  em- 
ployee, may  be  regarded  as  a  part  of  the  proximate  consequences 
of  the  original  accident.92 

Where  a  displacement  of  a  semilunar  cartilege  of  the  knee, 
which  had  been  cured  by  an  operation,  recurred  without  the  in- 
tervention of  an  accident,  and  which  is  likely  to  happen  at  any- 
time, cannot  be  said  to  result  from  an  accident  arising  out  of  the 
employment.93 

Where  an  employee  suffered  the  loss  of  one  leg  and,  as  a  result 
of  this  loss,  his  other  leg  became  infected  and  he  lost  the  use  of 
the  other  leg,  it  was  held  that  the  loss  of  the  second  leg  was  due 
to  an  accident.94 

§  238.  Rheumatism. — A  workman  in  a  blacksmith  shop 
pinched  his  finger,  and  an  infection  resulted  necessitating  four 
operations.  Four  days  after  he  left  the  hospital  he  was  found  to 
be  suffering  from  acute  inflammatory  rheumatism,  which  caused 
his  death.  Medical  testimony  was  conflicting  as  fo  whether  the 
rheumatism  was  caused  by  the  injury.  The  board  found  that 
there  was  sufficient  evidence  to  hold  that  death  did  result  from 
the  injury  and  awarded  compensation.05 

A  miner  was  compelled  to  stand  in  water  up  to  his  chest  while 
baling  out  water  in  a  mine,  in  consequence  of  a  breakdown  of  a 
pump.  He  contracted  subacute  rheumatism  as  a  result  of  the 
exposure.  The  lower  court  found  that  the  applicant  had  been 
disabled  by  an  injury  caused  by  an  accident.  On  appeal  to  the 

92.  Head  Drilling  Co.  v.  Indus.  Ace.  Com.,  170  Pac.  157,  177  Cal.  194, 
16  N.  C.  C.  A.  550,  1  W.  C.  L.  J.  470. 

93.  Giamopolini-Lombardi  Co.  v.  Raggio,  (1916)  3  Cal.  I.  A.  C.  324. 

94.  Saddlemire  v.  Amer.  Bridge  Co.,  —  Conn.  — ,   (1920),  110  Atl.  63, 
6  W.  C.  L.  J.  130. 

95.  Perdew  v.  Nufer  Cedar  Co.,  201  Mich.  520,  167  N.  W.  868,  2  W.  C. 
L.  J.  313,  17  N.  C.  C.  A.  884. 

452 


PERSONAL  INJURY   OR   DEATH    BY  ACCID1  §    238 

House  of  Lords  the  judgment  was  affirmed,  Viscount  Haldane 
saying:  "Had  he  (applicant)  died  suddenly  while  so  exposed, 
say,  of  heart  disease,  there  can  be  no  doubt  that  this  would  have 
given  a  title  to  his  dependents  to  claim  on  the  footing  of  injury 
from  accident.  I  am  unable  to  see  why  a  claim  in  respect  of  a 
less  serious  mishap  should  be  excluded  by  the  circumstance  that 
the  miscalculated  action  of  entering  the  water  took  time  to  pro- 
duce its  consequences.  This  miscalculated  action  of  entering  the 
water  in  the  present  case  must  be  taken  to  have  constituted  a 
definite  event  which  culminated  in  rheumatic  affection.  It  was 
the  miscalcuatiou  which  imported  into  that  event  the  character 
of  an  accident  within  the  meaning  of  the  act.90 

"Where  a  strain  in  the  course  of  the  employment  together  with 
a  pre  existing  rheumatic  condition  produces  disability,  compen- 
sation will  be  allowed.97 

AY  here  the  continuous  use  of  muscles  required  by  claimant's  work 
was  a  contributing  cause  of  his  disability,  which  was  also  due  to 
a  pre-existing  rheumatic  condition,  and  to  getting  wet  in  a  storm, 
and  his  work  was  not  of  a  kind  to  have  injured  o;ie  performing  it, 
requiring  no  more  exertion  than  ordinary  duties,  it  was  held  that 
his  incapacity  was  not  due  to  any  injury  arising  from  the  em- 
ployment.98 

Further  compensation  was  denied,  where  an  employee  had  suf- 
fered an  accidental  injury  and  was  also  suffering  from  rheumatism. 
The  present  disability  was  found  not  to  have  been  caused  by  the 
accidental  injury.09 

"Where  an  employee  dropped  a  heavy  weight  upon  his  fooot,  and 
later  gangrene  and  rheumatism  resulted,  it  was  held  that  the 
disability  was  due  to  the  accidental  injury.1 

96.  Glasgow  Coal  Co.  Ltd.  v.  Welsh,  (1916),  W.  C.  &  Ins.  Rep.  79.  afTg 
(1915),  W.  C.  &  Ins.  Rep.   463,  2  Sc.  L.  T.  123,  N.  C.  C.  A.  690;  In  re  C. 
P.  Garner,  3rd  A.  R.  U.  S.  C.  C.  139. 

97.  In  Re  Wm.  D.  Bowker,  2nd  A.  R.  U.  S.  C.  C.  138;    In  Re  John  H. 
Spillane,  2nd  A.  R.  U.  S.  C.  C.  138. 

98.  Pelersen  v.  Sperry  &  Barnes,  1  Conn.  Comp.  Dec.  370. 

99.  Worden  v.  Employers  Liab.  Assur.  Corp.,  1  Mass.  I.  A.  Hd.  153. 
1.     Stinton  v.  Brandon  Gas  Co..  5  B.  W.  C.  C.  426. 

453 


§  240  WORKMEN'S  COMPENSATION  LAW 

Inflammatory  rheumatism  or  rheumatic  fever  being  an  infec- 
tious disease  is  not  caused  by  exposure  to  extreme  climatic  changes 
from  heat  to  cold  and  cannot  under  the  evidence  submitted  be 
said  to  be  due  to  a  personal  injury,  and  therefore  not  compensable 
under  the  Federal  Act.2 

For  want  of  evidence  that  rheumatism  was  caused  by  exposure 
or  personal  injury  compensation  under  the  Federal  Act  was 
denied.3 

§  239.  St.  Vitus  Dance. — An  employee  developed  St.  Vitus 
dance  subsequent  to  a  blow  received  upon  the  head.  Medical 
experts  were  of  the  opinion  that  this  was  a  sufficient  shock  to 
cause  St.  Vitus  dance,  and  it  was  held  to  be  a  personal  injury.4 

A  woman  employee  fainted,  when  the  cry  of  fire  was  given  in  a 
factory,  and  remained  unconscious  for  two  hours,  and  thereafter 
suffered  from  chorea  or  St.  Vitus  dance.  An  award  of  compen- 
sation was  unanimously  affirmed."' 

§  240.  Sarcoma. — -Where  a  workman,  while  exerting  great 
pressure  on  a  bar,  slipped  and  fell,  sustaining  an  injury  which 
later  developed  into  sarcoma,  causing  death,  compensation  was 
allowed  on  the  ground  that  the  death  was  due  to  the  accidental 
injury.6 

An  employee  experienced  a  sharp  pain  in  the  left  side  over 
the  region  of  the  kidney  while  he  was  lifting  a  heavy  stone,  and 
upon  examination  he  was  found  to  be  suffering  from  hypertrophied 
kidney.  An  operation  revealed  a  sarcoma  or  tumor  of  the  left 
kidney,  which  had  been  developing  for  some  time  previous.  The 
operation  failed  to  restore  the  patient's  health,  and  he  died  a 
few  weeks  later.  It  was  held  that  death  was  caused  by  sarcoma 

2.  In  Re  Lewis  D.  Davis,  2nd  A.  R.  U.  7L.  C.  C.  194. 

3.  In  Re  Chas.  J.   Gibson,  2nd  A.   R.   U.   S.   C.   C.  194. 

4.  Christofore  v.  Employer's  Liab.  Assn.  Corp.,  2  Mass.  I.  A.  Bd.  364. 

5.  London  v.  Casino  Waist  Co.,  181  App.  Div.  N.  Y.  962,  Special  N.  Y. 
Bull,  for  August  1916— May  1918,  pg.  213. 

6.  Ondeck  v.  The  Edward  Balf  Co.,  2  Conn.  C.  D.  308;    In  Re  John 
Bengston,  3rd  A.  R.  U.  S.  C.  C.  140;    In  Re  Andrew  Nachtman,  3rd  A.  R. 
U.  S.  C.  C.  141. 

454 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    241 

of  the  kidney  which  could  not  have  been  caused  by  lifting  a 
stone.  The  only  relationship  shown  to  have  existed  between  de- 
ceased's act  of  lifting  the  stone  and  the  disease  is  that  de- 
ceased's attention  was  called  to  the  diseased  kidney  by  the  pain 
experienced  at  the  time  of  the  act  mentioned,  and  the  death  was 
not  due  to  the  injury.7 

An  employee  suffered  a  strain  in  the  groin  and  a  sarcoma  de- 
veloped, which  was  removed  by  operation.  Medical  testimony 
denied  the  probability  of  a  sarcoma  being  caused  in  this  way.  .It 
was  held  that  the  sarcoma  had  existed  prior  to  the  injury,  an  ! 
the  accident  only  served  to  call  the  attention  of  the  employe  to  it. 
Compensation  was  denied." 

§  241.  Scarlet  Fever. — Where  an  injured  employee,  while  in 
the  hospital,  contracted  scarlet  fever,  which  aggravated  his  in- 
jury the  prolonged  disability  caused  thereby,  was  held  to  be  the 
result  of  the  accident.9 

It  appeared  that  the  applicant  was  a  porter  in  an  infectious 
disease  hospital  and  was  employed  in  the  wards,  and  also  to  clean 
out  the  mortuary.  He  contracted  scarlet  fever,  and  claimed  com- 
I  cushion  under  the  Workmen's  Compensation  Act  of  1906.  It 
was  held,  by  the  Court  of  Appeal,  that,  though  it  was  very  probable 
that  he  had  caught  the  fever  in  the  hospital,  and  even  on  a  particu- 
lar occasion  of  cleaning  out  the  mortuary,  yet  there  was  no  evidence 
definitely  to  establish  these  facts;  and  that  in  any  event  the  con- 
tracting of  the  disease  could  not,  under  the  circumstances,  be  called 
an  "accident"  within  the  meaning  of  sub-section  1  of  section  1  of 
the  Act.10 

Where,  after  an  operation  for  hernia  a  workman  took  scarlet 
fever,  and  died,  while  still  in  the  hospital,  and  the  attending 
pliysici.m  certified  that  his  death  was  due  to  the  fever,  it  was 

7.  In  Re  Czwick.  (No.  127812)   Bull,  of  I.  C.  of  Ohio  Vol.  4,  pg.  108. 

8.  Monsoulis  v.  London  Guar.  &  Ace.  Co..  1  Mass.  I.  A.  Bd.  154;    In  Re 
Wm.  P.  Woods.  3rd  A.  R.  U.  S.  C.  C.  141. 

9.  Brown  v.  Kent  Ltd.    (1913).  W.  C.  Ins.  Rep.  639.  6  N.  C.  C.  A.  626. 

10.  Martin  v.   Manchester  Corp.,  5  B.  W.  C.  C.  259,  106  Law  Times 
Rep.  741.  28  Times  Law  Rep.  344.  3  N.  C.  C.  A.  238. 

455 


§  243  WORKMEN'S  COMPENSATION  LAWS. 

held  that  the  death,  did  not  result  from  the  injury,  and  compen- 
sation for  the  death  was  denied.11 

§  242.  Sciatica. — A  workman  was*  alternatively  exposed  to 
heat  and  cold,  and  as  a  result  of  such  exposure  he  contracted 
sciatic  rheumatism.  Compensation  was  denied  because  of  the 
absence  of  an  accident.  Affirming  the  judgment,  the  court  held 
that,  as  there  was  no  violence  to  the  physical  structure  of  plain- 
tiff's body  there  was  no  "accident,"  within  the  meaning  of  the 
compensation  act,  that:  "The  case  is  in  no  wise  different  than  the 
ordinary  case  where  a  man  who  has  been  engaged  in  indoor  work 
for  a  time  does  outdoor  work  in  cold  weather  and  contracts  a 
severe  cold:"  12 

A  boatman,  acting  as  an  unlicensed  pilot  jumped  to  his  own 
boat,  after  his  duties  were  performed  on  the  boat  he  was  piloting, 
and  in  landing  in  the  boat  he  nearly  upset  it,  and  water  filled  the 
boat.  Later  he  developed  sciatica,  which  incapacitated  him.  This 
was  held  to  be  an  accidental  injury.13 

On  March  13,  an  employee  was  assisting  in  loading  4  by  6 
timbers  on  trucks,  when  he  either  slipped  or  in  some  manner 
wrenched  his  back  and  fell  down  and  was  unable  to  move.  He 
was  confined  to  his  home  under  a  doctor's  care  until  August  10th. 
He  testified  that  he  worked  until  August  26th  when  the  "sciati- 
ca" came  back.  The  court  held  that  the  employee  suffered  a 
compensable  accidental  injury.1* 

§  243.  Septicaemia. — Where  bloodpoisoning  results  from  tlie 
intentional  use  of  a  hypodermic  needle,  and  it  is  shown  that  the 
contents  of  the  needle  was  of  such  a  nature  as  not  to  cause  the 
infection,  but  that  the  germ  must  have  come  from  the  exterior 
of  the  needle,  it  has  been  held  that  this  was  an  accident.13 

11.  Corcoran  v.  Farrell  Foundry  &  Machine  Co.,  1  Conn.  Comp.  Dec.  42. 

12.  Blair  v.  Omaha  Ice  and  Cold  Storage  Co.,  102  Neb.  16,  165  N.  W. 
893,   15  N.  C.  C.    A.    694,    1  W.  C.  L.  J.  424. 

13.  Barbeary  v.  Chugg,   (1915),    8  B.  W.  C.  C.    37. 

14.  Southwestern  Surety  Ins.  Co.  v.   Pillsbury,  172  Cal.  768,   158  Pac. 
762,  14  N.   C.  C.  A.  538. 

15.  Bailey  v.  Interstate  Gas.  Co.,  8  App.  Div.  127,  40  N.  Y.  Supp.  513, 
456 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  § 

An  employee  had  died  of  septicaemia  following  an  injury  to 
his  finger,  compensation  was  denied  because  of  lack  of  evidence 
to.  show  that  the  injury  to  his  finger  was  the  result  of  an  acci- 
dent." 

Where  a  miner  received  an  injury  to  his  foot,  caused  by  a  heavy 
fall  of  coal,  and  later  died  from  tetanus.  The  county  court  judge 
held  that  the  death  resulted  from  the  accident.  On  appeal  it 
was  held  that  there  was  evidence  to  support  this  finding.17 

Although  there  is  a  diseased  condition  existing  before  an  injury, 
and  the  injury  would  not  cause  death  but  for  the  pre-exist inv, 
condition,  still  if  septicaemia  ensues  naturally,  actually  and  un- 
avoidably from  the  injuries,  the  disability  is  compensable.18 

A  workman  sustained  an  injury  to  his  ribs  and  side  in  a  fall 
down  a  stairs.  After  his  discharge  from  the  hospital,  he  was 
compelled  to  return  to  the  hospital,  where  he  died  from  general 
septicaemia,  which  was  held,  on  conflicting  evidence,  to  be  the  re- 
sult of  the  accident,  and  compensation  was  awarded.19 

A  workman  received  a  wound  in  the  hand  on  April  17,  and 
erysipelas  developed  on  the  face  on  July  7th,  following.  It  was 
held  that  there  was  no  evidence  to  justify  a  finding  of  accidental 
injury.20 

A  workman  crushed  his  index  finger,  which  resulted  in  strep- 
tococcus infection,  necessitating  an  amputation  of  the  finger.  Later 
this  infection  spread  over  his  body  and  to  his  leg.  It  was  held 
that  this  continued  disability  resulted  from  the  original  injury.11 

Compensation  was  denied  for  the  death  of  a  miner  from  blood- 
poison,  claimed  to  have  resulted  from  an  abrasion  received  during 
a  fall  of  stone  in  the  mine.  Medical  evidence  showed  that  the  time 

Aff'd  158  N.  Y.  723,    53  N.  E.  1123;    MarchI  v.  Aetna  Life  Ins.  Co.,  205 
N.  Y.  606. 

16.  Peoria  Cordage  Co.  v.  Indus.  Bd..  284  111.  90.  119  N.  E   996. 

17.  Rtst  v.  Larkin  &  Sangster,  171  App.  Div.  71.  156  N.  Y.  Supp.  875; 
Stapleton    v.   Dlnnlngton    Main   Coal   Co.,    (1912),   5   B.   W.   C.  C.   602; 
Walker  v.  Mulllns,  42  Irish  L.  T.  168,  1  B.  W.  C.  C.  211. 

18.  Mazzarisi  v.  Ward,  170  App.   Div.  868.  156    N.  Y.  Supp.  964. 

19.  Dependents  of  Chaa.  Biero  v.  New  Haven  Hotel  Co.,  1  Conn.  C.  D. 
62. 

20.  Hugo  v.  Larklns  and  Co.,  3  B.  W.  C.  C.  228. 

21.  Batch  v.  Borough  of  Broton.  1  Conn.  C.  Com.  177. 

457 


§   244  WORKMEN 'S   COMPENSATION   LAW 

between  the  fall  of  stone  and  the  discovery  of  the  infected  condi- 
tion was  entirely  too  brief,  and  the  board  held  that  there  was  no 
evidence  that  the  blood  poisoning  was  the  result  of  an  injury.22 

Where  one  sustains  an  injury  while  working  in  the  ordinary 
way,  with  the  customary  materials  and  appliances,  .the  injury 
cannot  be  said  to  be  the  result  of  an  accident.  It  was  so  held 
where  an  engine  fitter  had  a  blister  on  his  finger,  and  in  con- 
sequence of  using  red  lead  the  finger  became  poisoned.23 

Where  a  railroad  engineer  cut  his  finger  at  home  and  blood- 
poison  supervened,  necessitating  the  amputation  of  the  finger,  it 
was  held  that  the  injury  was  not  the  result  of  an  accident.-4 

Where  an  employee  was  thrown  from  a  wagon  and  later  general 
septicaemia  followed  and  death  resulted,  it  was  held  that  the 
death  was  due  to  the  personal  injury.25 

A  workman,  who  was  engaged  in  moving  rails,  backed  into  a 
prop  and  injured  his  thigh.  He  continued  work  until  forced  to 
quit  because  of  pain.  Upon  consulting  a  physician  it  was  determin- 
ed that  he  was  suffering  from  osteomyelitis  and  septicaemia,  and 
an  operation  was  performed,  from  the  effect  of  which  the  patient 
died.  Medical  testimony  was  to  the  effect  that  a  blow  might  cause 
osteomyelitis.  It  was  held  that  the  death  was  caused  by  an  ac- 
cident.20 

§  244.  Skin  Affections. — Claimant  sought  compensation  for 
skin  eruption,  the  cause  of  which  was  unknown.  The  claim  was 
disallowed,  in  the  absence  of  evidence  to  establish  that  it  resulted 
from  an  accident  in  the  course  of  employment.27 

22.  Jenkins   v.  Standard  Colliery    Co.,   (1911),    5    B.  W.   C.  C.  71,  11 
N.  C.  C.  A.  509, 

23.  Walker  v.  Lillesball  Coal  Co.,  (1900),  81  L   T.  769,  2  W.  C.  C.  7. 

24.  Chandler  v.  G.  W.  R.  Co.,  (1912),  5  B.  W.  C.  C.  254. 

25.  Silva  v.  Travelers  Ins.   Co.,  2  Mass.  I.  A.  Bd.  597.     See  infection, 
Blood  Poisoning;  Friction  injuries,  Anthrax;   Gangrene  and  erysiplas. 
las. 

26.  Mills  v.  Dinnington  Main  Coal  Co,  Ltd.,  1917,  W.  C.  &  Ins.  Rep. 
11,  17  N.  C.  C.  A.  94. 

27.  In  re  Drews,  Ohio  I.  C.  No.  92709,  July  1,  1915,  11  N.  C.  C.  A.  500. 

458 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   245 

Where  an  employee  was  removing  an  old  water  closet,  and  suf- 
fered poisoning  of  his  face  and  hands,  due  to  contact  with  harm- 
ful substances,  compensation  was  allowed  for  the  disability.1'3 

An  employee,  working,  in  a  bleachery,  was  affected  with  a  rash, 
which  was  pronounced  to  be  a  condition  of  eczema  which  might 
be  due  to  the  acids.  It  was  found  that  the  condition  resulted 
from  coming  in  contact  with  moistened  clothes,  and  not  an  ac- 
cident within  the  meaning  of  the  New  Jersey  Act.29 

An  employee  in  &  hotel  was  afflicted  with  a  disease  making  his 
skin  abnormally  sensitive,  and  while  washing  dishes  in  a  tank  con- 
taining hot  water,  soap  and  caustic  soda  his  hands  became  greatly 
inflamed.  Later  his  nails  came  off,  and  he  was  disabled  for  about 
four  and  a  half  months.  Compensation  was  allowed  for  the  in- 
jury resulting  from  the  accident.30 

An  employee,  who  neglected  to  use  the  proper  gloves,  suffered 
from  dermatitis,  brought  on  by  washing  inkstands  with  a  solution 
of  caustic  soda.  This  was  held  not  to  be  an  accident.31 

\\ "here  a  workman's  hands  became  bruised  and  poisoned  from 
handling  rough  tanbark,  compensation  was  awarded,  although 
no  specific  time  could  be  assigned  to  the  happening  of  the  acci- 
dent.38 

Where  a  leather  cleanser  caused  an  acute  inflammation  of  the 
skin  and  blisters,  which  left  the  hands  raw  and  sore,  and  which 
rould  not  be  prevented  by  the  use  of  gloves,  it  was  held  that  this 
was  such  an  injury  as  entitled  the  employee  to  compensation.33 

§  245.  Sleep. — The  facts  in  this  case,  as  stated  by  the  court  in 
its  syllabus,  are  as  follows:  "On  August  15,  1916,  the  husband 
of  the  petitioner  was  a  farm  hand;  whose  particular  employment 
on  that  day  was  to  make  a  trip  to  Philadelphia  with  a  truck 

28.  Re  F.  J.  Courboyer,  Op.  Sol.  C.  &  L.  582. 

29.  Liondale  Bleach,  Dye  and  Paint  Works  v.  Riker,  86  N.  J.  T.  428, 
89  Atl.  929,  4  N.  C.  C.  A.  713;    Rev's.  36  N.  J.  L.  J.  305. 

30.  Dotzaur  v.  Strand  Palace  Hotel.  (1910),  3  B.  W.  C.  C.  387. 

31.  Cheek  v.  Hamsworth  Bros.   (1901).  4  W.  C.  C.  3. 

32.  Seward  v.  Sunset  Trading  and  Land  Co..  3  Cal.  1.  A.  C.  49. 

33.  Boris   v.  Frankfort  Gen.  Ins.  Co.,  1   Mass.  I.  A.  C.    Bd.,  276,  for 
additional  cases,  see  Dermatitis  and  Eczema. 

459 


§  245  WORKMEN'S  COMPENSATION  LAWS. 

wagon  drawn  by  a  team  of  mules.  He  left  the  farm  between 
5  and  6  o'clock  in  the  afternoon,  and  at  2  o'clock  the  next  morning 
was  found  dead  sitting  on  the  seat  of  the  truck  with  his  body 
crushed  between  the  seat  and  the  over  hanging  roof  of  a  shed 
under  which  the  mules  were  standing."  "The  court  was  jus- 
tified in  finding  that  the  injury  of  which  the  decedent  died  was 
not  intentionally  self -inflicted  or  the  result  of  intoxication.  This 
left  two  hypotheses  upon  which  to  account  for  the  manner  in 
which  such  injury  was  caused,  viz.,  that  the  decedent  was  asleep 
when  the  mules  went  under  the  low  roof,  or  that  he  was  negligent 
if  he  was  awake.  The  latter  hypothesis  need  not  be  considered, 
inasmuch  as  negligence  is  no  bar  to  a  recovery  of  compensation. 
"The  main  contention  is  that  the  injury  was  not  accidental  if 
the  decedent  was  asleep;  the  argument  being  that  sleep  is  not 
an  accident.  The  act  of  going  to  sleep  may  or  may  not  be  an 
accident,  depending  upon  whether-  or  not  it  was  designed ;  but  the 
failure  to  wake  up  in  time  to  avert  a  catastrophe  is  an  accident 
in  every  sense  of  the  word.  If  the  going  to  sleep  was  not  designed, 
it  was  accidental;  if  it  was  designed  it  was  negligence.  In  any 
event,  the  undesigned  failure  of  the  deceased  to  wake  up  until 
he  was  crushed  between  the  seat  and  the  low  roof  was  purely 
'accidental'  in  the  sense  in  which  that  term  is  constantly  and 
correctly  employed.  Falling  out  of  bed  asleep  is  an  accident, 
even  if  the  sole  design  in  going  to  bed  was  to  go  to  sleep.  The 
sole  case  in  which  falling  asleep  is  clearly  not  within  an  employment 
is  that  of  a  watchman  or  similar  service,  where  the  servant  is 
employed  expressly  to  stay  awake.  In  such  case  the  failure  of 
the  servant  to  do  the  one  thing  he  was  specially  employed  to  do 
is,  in  effect,  an  abandonment  of  his  employment.  Such  seems  "to 
have  been  the  recent  case.  Gifford  v.  Patterson,  222  N.  Y.  4 
(15  N.  C.  C.  A.  263),  117  N.  E.  946."  It  was  held  that  de- 
ceased came  to  his. death  by  an  accident  arising  out  of  the  em- 
ployment34 

34.     Dixon  v.  Andrews,  91  N.  J.  L.  973,  103  Atl   410,  16  N.  C.  C.  A.  894.  2 
W.    C.    L.   J.    105. 

460 


PERSONAL  INJURY  OB  DKATII    MY  ACCIDENT.  §    247 

§  246.  Source  of  Necessary  Fact. — A  workman's  hand  be- 
came cracked  from  exposure  to  wet  and  cold  weather.  He  worked 
several  days  when  the  cracks  began  to  open  and  bleed,  with  the 
result  that  his  hand  had  to  be  bound  up,  and  while  in  this  con- 
dition it  became  infected.  The  trial  judge  denied  compensation 
because  he  could  not  determine  whether  the  infection  resulted 
from  the  employment,  the  atmosphere  or  other  source.  The  ap- 
pellate court,  in  reversing  this  decision,  stated  that :  ' '  The  result 
is  this — that  the  man's  incapacity  to  work,  his  poisoned  hand,  re- 
sults from  the  injury,  from  the  crack  opening  and  becoming 
poisoned."" 

The  employee  was  engaged  in  sacking  bone  fertilizer.  An  in- 
fection resulted  from  a  slight  scratch  on  the  leg,  through  there 
was  no  proof  as  to  how  this  was  sustained.  Streptococci  germs 
are  found  in  large  numbers  in  bone  dust,  also  to  a  lesser  degree 
in  decaying  matter,  dust.  etc.  The  court  held  that  disease  could 
not  be  said  to  be  an  accident  if  it  could  not  be  shown  to  have  been 
contracted  at  a  particular  time  and  at  a  particular  place  by  a  par- 
ticular accident.36 

§  247.  Sprains  and  Strains. — A  muscular  spasm  caused  by 
straining  the  muscles  of  the  side  while  attempting  to  lift  a  heavy 
cement  block,  is  an  accident.37 

Where  an  employee  ruptured  a  blood  vessel  in  his  lungs  while 
lifting  heavy  cans  of  paint,  it  was  held  that  the  injury  resulted 
from  accident.38 

An  employee  suffered  two  accidents,  one  when  he  fell  into  an 
excavation,  sustaining  an  aneurism  of  the  aorta  and  heart  ir- 
regularity, and  another  when  he  fell  dead,  while  doing  some  heavy 
lifting.  The  trial  judno  held  that  the  strain  from  heavy  lifti:i-_* 

35.  Saddington  v.  Inslip  Iron  Co.,  Ltd.,    (1918).  W.  C.  &  Ins.  Rep.   46. 

36.  Grant  v.  O.  &  G.  Kynoch,    (1918),  W.  O    &    Ins.  Rep.  117. 

37.  Bystrom  v.  Jacobson,  162  Wis.  180,  155  N    W.  919.  14  \.  C.  C.  A. 
628;    Vernon  v.  A.  E.  Keyes.  1  Cal.  I.  A.  C.  Part  II.  526. 

38.  Southwestern  Surety  Ins.  Co.  v.  Owens,  —  Tex.  Civ.  App.,  — ,  198 
S.  \V.  662.    15  N.  C.  C.  A.  524. 


461 


§   247  WORKMEN.^   COMPENSATION   LAW 

in  his  -diseased  condition,  brought  about  by  the  fall,  caused  his 
death,  and  compensation  was  awarded.30 

Where  a  stone  mason  sustained  a  rupture  of  a  blood  vessel  as 
the  result  of  strenuous  exertions  in  cutting  stone,  and  died  from  its 
effects,  it  was  held  that  deceased  came  to  his  death  as  the  result 
of  an  accident.40 

Where  an  employee  suffered  a  strain  while  lifting  a  heavy  barrel, 
which  strain  caused  a  stroke  of  apoplexy,  it  was  held  that  the  in- 
jury sustained  was  an  accidental  injury.41 

Where  an  employee  endeavored  to  move  heavy  "I"  beams  and 
suffered  a  strain,  causing  hemorrhage,  it  was  held  that  he  had  sus- 
tained an  accidental  injury,  and  compensation  was  allowed.42 

Where  a  man,  while  piling  lumber,  slipped  and  wrenched 
his  back,  it  was  held  that  he  had  sustained  an  accidental  in- 
jury.43 

Where  a  woman  aggravated  a  weak  heart  condition  by  over- 
exertion  in  pulling  carpet  thus  incapacitating  herself  for  work,  it 
was  held  that  her  incapacity  resulted  from  an  accidental  injury.44 

Where  a  workman  ruptured  his  spinal  cord  as  a  result  of 
exertion  in  pushing  a  wheelbarrow,  and  died  later  from  the  in- 

39.  Winter  v.  Frazelle  Co.,  88  N.  J.  L.  401,  96  Atl.  360,  11  N.  C.  C.  A, 
180. 

40.  State   ex  rel.   Simmers  et   al.  v.  District  Court  of  Stearns  County, 
137  Minn.   318,  163  N.   W.    667,  14  N.  C.    C.  A.  527;     Fenton  v.    Thorley, 
1903,  19  L.  T.  R.  684,  5  W.  C.  C.  1. 

41.  Fowler  v.    Risedorph  Bottling  Co.,    175    N.  Y.  App.  Div.    224,  161 
N.  Y.  Supp.  535,    14  N.  C.  C.  A.   536;     Duffy  v.    Town  of  Brookline,  - 
Mass.  — ,  115  N.  E.  248,  14  N.  C.  C.  A.  537. 

42.  Manning  v.  Pomerene,  101  Neb.  127,  162  N.  W.  492,  14  N.   C.  C,  A. 
537;    Schmidt  v.  O.  K.  Baking  Co.,  1  Conn.  Comp.  Cas.,  683,  14  N.  C.  C, 
A.  539. 

43.  Southwestern  Surety  Co.  v.  Pillsbury,  172  Cal.  768;    158  Pac.  762, 
14  N.  C.  C.  A.  537,       : 

44.  In  re  Madden,  222  Mass.   487,  111  N.  E.  379,   14  N.  C.  C.  A.   538; 
Uhl  v.  Guarantee  Const.  Co.,  174  N.  Y.  App.  Div.  571,  161  N.  Y.  Supp.  659, 
14  N.  C.  C.  A.  546.    See  aggravation  of  pre-existing  condition.     Broleski 
v.  Nickols  Copper  Co.,  171  N.  Y.  App.  959,  155  N.  Y.  Supp.  14  N.  C.  C.  A. 
547. 


462 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    247 

jury,  the  court  held  that  his  death  was  due  to  ail  accidental  in- 
jury.45 

Where  an  employee  suffered  a  strain  in  the  course  of  his  em- 
ployment and  later  died  of  miliary  tuberculosis,  but  medical  evi- 
dence was  to  the  effect  that  the  conditions  following  an  injury 
that  are  necessary  to  cause  the  tubercular  germ  to  become  active 
were  not  present  and  in  no  case  could  a  strain  cause  the  germs  to 
become  active,  the  court  held  that  there  was  no  evidence  tending 
in  any  way  to  connect  the  employee's  diseased  condition  or  his 
subsequent  death  with  the  injury.40 

A  workman's  duties  consisted  of  lifting  a  heavy  iron  bar  many 
times  during  the  day,  and  while  he  was  lifting  the  bar  he  felt  a 
snap  which  developed  into  a  hernia.  In  denying  compensation, 
the  court  said:  "In  the  case  at  bar  it  conclusively  appears  from 
claimant's  own  testimony  that  he  received  no  accidental  injury. 
He  was  engaged  at  the  moment  of  his  injury  in  his  usual  and 
ordinary  employment  and  in  the  usual  and  ordinary  way.  In  the 
course  of  such  employment  it  was  his  duty  to  lift  the  iron  bar 
once  in  about  every  15  minutes,  about  90  or  100  times  a  day. 
We  are  of  opinion  that  an  employee  who  receives  an  injury  in 
the  nature  of  a  hernia,  while  engaged  in  his  usual  and  ordinary 
employment,  without  the  intervention  of  any  untoward  or  accident- 
al happening,  is  not  within  the  provisions  of  the  compensation  act, 
which,  as  we  have  held,  provides  compensation  for  accidental 
injury  only."47 

A  workman,  while  lifting  a  heavy  weight,  suffered  a  strain, 
which  caused  dilation  of  the  heart  muscle,  and  resulted  in  acute 

45.  State  ex  rel.  Puhlman  v.  District  Court  Brown  Co.,  *37  Minn.  30, 
162  N.  W.  678,  14  N.  C.  C.  A.  545;    Sinclair  v.  Ramapo  Iron  Wks.,  4  X.  V. 
St.  Rep.   415.    In  re  Harry    \V.  Truitt,   2nd  A.    R.  U.   S.  C.   C.   132;  In  -re 
Alpheus  Bigelow,  2nd  A.  R.  U.  S.  C.  C.  132. 

46.  Albaugh-Dover  Co.    v.  Industrial  Board  of  111..    278  111.   179,  115 
N.  E.  834,  14  N.  C.  C.  A.  545.    In  re  Martin  J.  Cardwell,  2nd.  A.  R.  U.  S, 
C.  C.  135. 

47.  Kutschmar  v.   Briggs  Mfg.  Co.,  197  Mich.   146.   163  X.  W.   933.  15 
N.   C.   C.    A.    524. 

463 


§  247  WORKMEN'S  COMPENSATION  LAWS. 

cardiac  dilation  causing  death.  The  court  held  that  the  death 
was  due  to  the  accidental  injury.48 

Pneumonia,  resulting  from  an  injury  sustained  from  lifting  a 
heavy  object,  was  held,  on  conflicting  evidence  by  experts,  to  be 
due  to  the.  accidental  injury.49 

Where  a  continuous  strain  brings  about  a  cardiac  breakdown, 
it  cannot  be  said  that  the  disability  or  death  was  due  to  an  acci- 
dent.50 

Compensation  was  denied  to  applicant,  who  claimed  that  he 
suffered  from  a  strain  while  lifting,  causing  a  variocele,  because 
medical  testimony  denied  the  probability  of  varicocele  resulting 
from  an  injury,  it  being  a  gradual  development.51 

Falling  of  the  womb,  causing  by  a  strain,  sustained  while  carry- 
ing buckets  of  starch  in  a  laundry,  has  been  held  to  be  an  accident- 
al injury.52 

A  workman  mowing  around  a  field,  sought  to  straighten  some 
down  grain,  and  strained  his  leg,  whereby  he  tore  muscles  and 
rupturd  fibers.  This  was  held  to  be  a  personal  injury  by  acci- 
dent.53 

Rupture  caused  by  overexertion  in  the  course  of  a  man's  work, 
is  an  accident.5* 

48.  In  re  Gibbons,  181  N.  Y.  App.  Div.   142,  168  N.   Y.  Supp.  412,   15 
N.  C.  C.  A.  525,   1  W.  C.  L.  J.  697;     Matter  of  Caroll   v.  Knickerbocker 
Ice  Co.,  218  N.    i.  435,  113  N.  E.  507,  14  N.   C.   C.   A.   427;  Flaherty  v. 
Locomobile   Co.  of   America,  1    Conn.  C.  D.    354;  In  re   Powers,  Op.  Sol. 
Dept.  Labor  214. 

49.  Bayne  v.  Riverside  Storage  &  Cartage  Co.,    181    Mich.    378;    148 
N.  W.  412;    5  N.  C.  C.  A.  837. 

50.  Coe  v.  Fife  Coal  Co.  (1909),  S.  C.  393,  46  Sc.  L.  R.  A.  325,  8  N.  C. 
C.  102;    Black  v.  New  Zealand  Shipping   Co.,    6  B.    W.  C.  C.    720,  1913 
W.  C.  &  Ins.  Rep.    480,  8  N.  C.  C.  A.  102;  Ritchie  v.  Kerr,  1915,  S.  S.  613, 
Sc.  L.  R.  434;   6  B.  W.  C.  C.  419,  W.  C.  &  Ins.  Rep.  297. 

51.  Holden  v.  Maryland  Casualty  Co.,  1  Cal.  I.  A.  C.  D.  No.  1,  (1914), 
11,  6  N.  C.  C.  A.  399;  Marshall  v.  Shepherd,  6  B.  W.  C.  C.  571. 

52.  Loustalet  v.  Metropolitan  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  (1914) 
318,  10  N.  C.  C.  A.  771. 

53.  Purse  v.  Hay  ward,  (1908),  C.  C.,  125  L.  T.  J.  10,  1  B.  W.  C.  C.  216, 

54.  Fenton  v.  J.  Thoreley  &  Co.,  (1903)  5  W.  C.  C.  1;  Stewart  v.  Wil- 
sons &    Clyde  Co.,  (1903),   5  Falc.  120    (Scotch);  United    States  Mutual 
Accident  Ins.  Ass'n.  v.  Barry,  131  U.  S.  100,  33  L.  Ed.  60;  North  American 
Life  &  Accident  Ins.  Co.  v.  Burroughs,  69  Penn.  43. 

464 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   247 

Where  a  scrubwoman  slipped  and  fell  on  a  slippery  floor,  and 
sustained  a  sprain,  compensation  was  allowed  for  the  injury.55 

Where  a  condition  of  arterial  sclerosis  was  aggravated  by 
reason  of  a  continued  strain,  causing  disability,  it  was  held  that 
this  was  an  injury.60 

A  workman  claimed  to  have  ruptured  a  blood  vessel  while 
assisting  in  lifting  the  end  of  one  of  the  dump  wagons  used  in 
the  employment.  Later  he  died  from  hemorrhages.  On  conflicting 
evidence,  it  was  held  that  the  evidence  failed  to  sustain  the  con- 
tention that  the  rupture  was  caused  by  an  accident.57 

A  workman,  while  lifting  a  heavy  beam,  suddenly  tore  several 
fibres  of  the  muscles  of  his  back.  It  was  held  that  this  was  a 
compensable  accident.58 

Where  an  employee  died  from  mitral  regurgitation  immediately 
after  lifting  a  metal  cover  weighing  150  Ibs.,  being  assisted  by  two 
other  workmen,  the  strain  of  the  lifting  was  not  unusual  or  for- 
tuitous, and  therefore  not  an  accident,  when  two  men  had  just 
previously  lifted  the  same  cover  and  the  employee  had  himself 
been  doing  the  same  work  for  several  days.59 

Where  a  workman  suffered  a  strain  while  lifting  terra  cotta 
window  sills,  which  strain  caused  a  strangulated  right  oblique 
inguinal  hernia,  necessitating  an  operation  from  which  the  patient 
died,  compensation  was  allowed,  even  against  the  contention  that 
deceased  suffered  from  a  disease  or  from  a  congenital  defect,  the 
development  of  which  is  not  an  accidental  injury.60 

55.  Welsh  v.  American  Mutual  Liability  Ins.  Co.,  1  Mass.  Ind.  A.  Bd. 
119. 

56.  Homan  v.  Frankfort  Gen.  Ins.  Co.,  2  Mass.  Ind.  A.  Bd.  775. 

57.  Englebretson  et  al.  v.  Ind.  Ace.  Com.,  170  Cal.  793,  151  Pac.  421,  10 
N.  C.  C.  A.  545. 

58.  Boardman  v.  Scott  &  Whitworth,  (1901),  3  W.  C.  C.  33,  85  L.  T.  502, 
4  W  C.  C.  1;     Timmins  v.  Leeds  Forge  Co.,  2  W.  C.  C.  10;     Stewart  v. 
Wilson  \  C'lyde  Coal  Co.,  (1902),  5  Sc.  Sess.  Cas.  5th  Series  Scot.  126; 
Fidele  v.  EHe  R.  R.  Co..  (1916),  8  N.  Y.  St.  Dep.  Rep.  454. 

59.  Guthrie  v.  Detroit  Shipbuilding  Co.,  200  Mich.  355,  167  N.  \V.  37, 
1  W.  C.  L.  J.  1035. 

60.  Hurley  v.  Seldon-Breck  Const.  Co..  193  Mich.  197,  159  N.  W.  311,  14 
N.    C.    A.    529.      See    Hernia,    Fleming    v.    Robert    Gair    Co.,    17,    6 
N.  Y.  App.  Div.  23,  162  N.  Y.  Supp.  298,  14  N.  C.  C.   A.  543;     Grove  v. 

465 

W.  C.— 30 


§  248  WORKMEN'S  COMPENSATION  LAW 

* 

§  248.  Suicide. — An  engine  driver  suffered  an  injury  to  his 
thumb  which  became  infected  and  took  a  long  time  in  healing. 
He  became  depressed  and  suffered  from  neurasthenia,  and  later 
committed  suicide  by  throwng  himself  in  front  of  a  train.  Com- 
pensation was  denied,  the  court  saying  that  the  injury  was  not 
the  cause  of  the  insanity  resulting  in  suicide.61 

An  employer  received  an  injury  through  a  splash  of  molten 
lead  in  his  eye.  He  received  hospital  treatment,  and  later  became 
silent  and  moody,  was  depressed  and  suffered  from  certain  marked 
hallucinations.  While  in  this  condition  he  threw  himself  from 
a  window  in  the  hospital  and  was  killed.  Upon  the  evidence  ad- 
duced, it  was  held  that  the  death  was  a  direct  result  of  the  injury, 
the  court  stating  the  following  rule  with  approbation ;  ' '  This 
decision  rests  upon  the  rule  established  in  Daniels  v.  New  York 
N.  H.  &  H.  R.  Co.,  183  Mass.  393,  67  N.  E.  424,  62  L.  R.  A.  751. 
That  rule  applies  to  cases  arising  under  the  Workman's  Com- 
pensation Act  It  is  that,  where  there  follows  as  the  direct  result 
of  a  physical  injury  an  insanity  of  such  violence  as  to  cause  the 
victim  to  take  his  own  life  through  an  uncontrollable  impluse 
or  in  a  delirium  of  frenzj'-  without  conscious  volition  to  produce 
death,  having  knowledge  of  the  physical  consequences  of  the  act, 

Michigan  Paper  Co,.  184  Mich.  449,  151  N.  W.  554,  6  N.  C.  C.  A.  405;  Eddes 
v.  School  District  of  Winnipeg,  22  Manitoba  240,  21  W.  L.  R.  214,  2  W. 
W.  R.  665,  2  Dom.  L.  R.  696,14  N.  C.  C.  A.  542;  La  Veck  v.  Park  Davis  & 
Co.,  190  Mich.  604  ,151  N.  W.  72,  12  N.  C.  C.  A.  325;  See  aggravation 
of  pre-existing  disease,  Scales  v.  West  Norfolk  Farmers'  Chem- 
ical Co.,  1913  W.  C.  &  Ins.  Rep.  165;  Hills  v.  Oval  Wood  Dish  Co.,  191 
Mich.  411,  158  N.  W.  214;  Bell  v.  Hayes-Ionia  Co.,  192  Mich.  90,  158  N.  W. 
179,  14  N.  C.  C.  A.  532;  See  Hernia,  Robbins  v.  Original  Gas  Engine  Co., 
191  Mich.  122,  157  N.  W.  437,  14  N.  C.  C.  A.  530.  See  Hernia.,  Brown  v. 
Kemp,  6  B.  W.  C.  C.  725,  14  N.  C.  C.  A.  535,  Smelik  v.  Peabody  Coal  Co., 
111.  Ind.  Bd.  July  10,  1914,  6  N.  C.  C.  A.  398;  Fulford  v.  Northfleet  Coal 
&  Ballast  Co.,  1  B.  W.  C.  C.  222,  6  N,  C.  C.  A.  399;  In  re  Clark  & 
Op.  Sol.  Dept.  Labor,  188;  Voorhess  v.  Smith  Schoonmaker  Co.,  86 
N.  J.  L.  500,  92  Atl.  280;  Zappala  v.  Ind.  Ins.  Com.,  82  Wash. 
314,  114  Pac.  54,  L.  R.  A.  1916A.  295;  Poccardi  v.  Public  Service  Comm., 
75  W.  Va.  542,  84  S.  E.  242,  L.  R.  A.  1916A,  299;  Donahue  v.  R.  A. 
Sherman  Sons  Co.,  39  R.  I.  373,  98  Atl.  109,  14  N.  C.  C.  A.  547. 

61.     Withers  v.  London,  B.  &  S.  Co.  Ry.  (1916)  W.  C.  &  Ins.  Rep.  317, 
15  N.  C.  C.  A.  349. 
466 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    248 

then  there  is  a  direct  and  unbroken  causal  connection  between  the 
physical  injury  and  the  death.  But  where  the  resulting  insanity 
is  such  as  to  cause  suicide  through  a  voluntary  willful  choice  de- 
termined by  a  moderately  intelligent  mental  power  which  knows 
the  purpose  and  the  physical  effect  of  the  suicidal  act,  even  though 
choice  is  dominated  and  ruled  by  a  disordered  mind,  then  there  is 
a  new  and  independent  agency  which  breaks  the  chain  of  causation 
arising  from  the  injury."62 

An  employee,  who  had  prior  to  the  date  of  injury  lost  one  of 
his  eyes,  was  while  at  work  struck  by  a  splinter  in  the  remaining 
eye  and  gradually  lost  the  sight  of  this  eye  also,  at  which  time 
he  committed  suicide.  The  widow  alleged  that  in  consquence  of 
the  injury  the  deceased  received  a  severe  shock  and  that  his  nervous 
system  broke  down,  his  mind  became  affected  resulting  in  insanity 
during  which  he  committed  suicide;  the  sheriff's  substitute  dismiss- 
ed the  application  as  irrelevant.  In  declaring  that  the  application 
should  not  have  been  dismissed,  it  was  held  that  the  averments 
should  not  be  as  strictly  construed  as  in  case  of  an  action  at 
law,  and  that  applicant  should  be  allowed  to  offer  proof  of  the 
matter  averred,  and  be  afforded  an  opportunity  of  establishing 
the  chain  of  causation  between  the  injury  and  the  death.63 

Where  a  workman's  head  was  injured  by  a  fall,  and  traumatic 
neurasthenia  developed  and  gradually  grew  worse,  and  about  eight 
months  after  the  accident  he  was  found  drowned  in  a  canal,  the 
county  court  judge  found  that  he  committed  suicide,  due  to  a 
' li^-ased  mental  condition  resulting  from  the  accident.  On  appeal 
this  order  was  reversed  on  the  ground  that  there  was  no  evidence 
to  justify  such  finding.64 

The  decedent  received  an  injury  to  his  hand  in  the  course  of  his 
employment,  by  striking  it  against  a  rusty  pipe.  Infection  follow- 
ed and  he  was  taken  to  a  hospital.  Later  he  escaped  from  the 

62.  In  re  Sponatski.  220  Mass.  526.  108  N.  E.  466,  8  N.  C.  C.  A.  1025; 
Lupfer  v.   Baldwin  Locomotive   Works,  —Pa.—    (1921).  112  All.  458. 

63.  M  alone  v.  Cayzer.  Irvine  &  Co.,   1  B.   W.  C.  C.  27,  1908  S.  C.  479, 
45  Sc.  L.    R.  351.  8  N.  C.  C.  A.  1026. 

64.  Southal  v.  Cheshire  County  News  Co.,  5  B.  *V.  C.  C.  251.  (1912), 
W.  C.  A  Ins.  Rep.  101.  8  N.  C.  C.  A.  1028. 

467 


§  249  WORKMEN'S  COMPENSATION  LAWS. 

hospital  and  was  found  dead  on  a  railroad  track.  The  sole  con- 
tention was  whether  there  was  any  connection  between  the  death 
and  the  injury.  Medical  experts  were  of  the  opinion  that  the  in- 
jury produced  a  diseased  mental  condition,  and  the  absorption 
of  the  toxins  from  the  infection  caused  him  to  become  violent.  The 
board  found  that  there  was  a  causal  connection  between  the  injury 
and  the  death.65 

Where  a  workman,  who  had  suffered  an  injury  to  his  eye,  and 
committed  suicide  after  the  doctor  had  expressed  the  thought  that 
he  might  lose  the  sight  of  it,  and  there  was  no  evidence  of  insanity, 
compensation  was  denied.66 

Where  the  body  of  an  employee  was  found  on  the  pavement  under 
the  window  of  the  mill  where  he  worked,  and  there  was  no  direct 
evidence  of  suicide  or  murder,  the  presumption  against  the  com- 
mission of  a  crime  is  sufficient  to  warrant  a  finding  that  the  death 
was  due  to  an  accident.  "Where  the  evidence  shows  deceased 
to  have  been  in  good  health  and  there  is  a  complete  absence  of 
evidence  showing  suicide,  it  must  be  presumed  that  the  death 
was  accidental.61 

§  249.  Sun  Stroke  and  Heat  Stroke.— Plaintiff's  deceased,  57 
years  of  age,  suffered  a  heat  stroke  in  a  sheet  iron  building  while 
the  therometer  stood  at  86  or  87  degrees.  Deceased  had  been 
employed  there  for  7  years.  Defendant  contended  that  there 
had  been  no  physical  violence  to  the  deceased's  body;  that  the 
heat  prostration  resulting  in  the  death  was  due  to  natural  causes ; 
that  the  death  did  not  result  from  violence  or  the  resultant  effect 
of  violence.  The  court,  in  affirming  the  judgment  for  the  plaintiff 
said:  "There  would  have  been  no  injury  if  the  business  had  not 
existed.  The  heat  and  humidity,  the  corrugated  sheet  iron  in 

65.  Chisea   v.  United    States  Crushed    Stone  Co.  111.  Ind.    Bd.  Oct.  28, 
1914,  8  N.  C.  C.  A.  1029. 

66.  Grime  v.  Fletcher  (1915),  1  K.  B.  (Eng.)  734,  31  Times  L.  R.  158, 
84  L.  K.  B.  N.  S.  847,  8  B.  W.  C.  C.  69,  (1915),  W.  N.  43,  59  Sol.  Jo.  233. 

67.  Sparks  Milling  Co.  v.  Indus.  Comm.  —  111.  —  (1920),  127  N.  E.  737, 
6  W.  C.  L.  J.  299;     Wilkinson  v.  Aetna  Insurance  Co.,  240  111.  205,  88  N. 
E.  550,  25  L.  R.   A.   (N.   S.)    1256,  130  Am.   St.  Rep.   269;     Wiscaless  v. 
Hammond,  Standish  &  Co.,  201  Mich.  192,  166  N.  W.  993 

468 


SONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §  240 

the  building,  the  tarred  roof,  the  poor  ventilation,  and  the  dust 
and  particles  of  matter  in  the  air,  all  acting  together  caused  the 
sickness  that  brought  about  the  death  of  the  decedent.  A  stronger 
man  might  have  lived,  but  it  is  enough  that  the  industry  brought 
about  this  man's  death.  An  accident  is  an  event  which  proceeds 
from  an  unknown  cause,  or  is  an  unusual  effect  of  known  cause, 
and  therefore  not  expected.  *  *  *  It  is  our  view  that  compensation 
is  a  charge  against  the  industry  because  the  industry  itself  is 
responsible  for  the  injury.  As  applied  to  this  case  it  may  be 
fairly  assumed  that  plaintiff's  decedent  would  not  have  died  at 
the  time  he  did  but  for  the  fact  that  he  went  to  the  factory  on 
a  hot  day  and  worked  in  a  heated  building."08 

An  employee  suffered  a  heat  stroke  and  died  an  hour  thereafter. 
Two  physicians  testified  that  heat  stroke  is  generally  regarded  as 
an  accident,  especially  when  due  to  artificial  heat,  also  that  it  pro- 
duces pathological  changes  in  the  body.  On  appeal,  the  court 
held  that  the  evidence  was  sufficient  to  show  that  an  accident  had 
happened  to  the  deceased,  such  as  was  contemplated  by  the  com- 
pensation act.89 

In  an  English  case,  where  the  employee  died  of  heat  stroke 
while  working  as  a  stoker  on  a  ship  on  the  Red  Sea,  the  court  said : 
"The  elements  of  accident  such  as  suddenness  and  unexpectedness 
or  miscalculation,  all  seem  to  be  absent;  everything  happened  as 
might  be  expected."76 

In  a  Minnesota  Case,  the  court  held  that  sunstroke  or  heat 
stroke  was  an  accident,  saying  :  "This  was  as  a  violent  injury 
produced  by  an  external  power,  not  natural.  *  *  *  The  intense  heat 

68.  Young  v.  Western  Furniture  &  Mfg.  Co..  101  Neb.  696,  164  N.  W. 
712,  15  N.  C.  C.  A.  676;     Zoler  v.  American  Steel  &  Wire  Co.,  111.  I.  Bd. 
No.  844    (1915),  12  N.  C.  C.  A.  319;     In  re  Wm.   F.  Manning,  2nd  A.  R. 
U.   S.  C.    C.  205;    In  re   Henry  Ecke.    2nd  A.   R.  U.  S.   C.  C.   205;  In  re 
Johann.  2nd.  ,A.  R.  U.  S.  C.  C.  206. 

69.  Kanschelt  v.  Garrett  Laundry  Co.,  101  Neb.  702,  164  N.  W.  708,  15 
N.  C.  C.  A.  675;     City  of  Joliet  v.  Indus.  Comm..  —111.—  126  N.  E.  618, 
r,  \V.  C.  L.  J.  802. 

70.  Pyper  v.  Manchester   Liners,  Ltd,  (1916),  W.   C.  &  Ins.  Rep.  301, 
15  N.  C.  C.  A.  678;    Contra,  Maskery  v.  Lancashire  Shipping  Co.,  7  B.  W. 
C.  C.,428,  6  N.  C.  C.  A.  708. 

469 


§  249  WORKMEN'S  COMPENSATION  LAW 

of  the  sun  associated  with  the  humidity  of  the  atmosphere  emana- 
ting from  the  wet  sand  as  an  external  cause  was  a  violent  agency 
in  the  sense  that  it  worked  upon  decedent  so  as  to  cause  his  injury 
and  death.  The  conclusion  that  his  death  was  caused  by  violent 
and  external  means  is  inevitable.  That  a  death  is  unnatural  im- 
ports a  violent  agency  as  the  cause."71 

In  a  Michigan  case  the  employee  was  doing  brick  work  about 
a  boiler.  The  temperature  was  136  degrees,  and  he  was  overcome 
with  the  heat  and  went  home  for  a  day,  after  which  he  returned, 
was  overcome  and  died.  The  Industrial  Accident  Board  awarded 
compensation  for  his  death.  In  reversing  the  award  on  appeal,  the 
court,  after  remarking  that  the  Michigan  Workmen 's  Compensation 
Act  provided  compensation  for  accidental  injuries  only,  said :  ' '  The 
record  is  absolutely  barren  of  any  evidence  that  anything  untoward 
or  unusual  happened  in  the  course  of  his  employment  during 
any  of  the  three  days  or  that  he  exerted  himself  in  any  unusual 
manner  or  to  an  unusual  degree.  lie  was  doing  the  work  which 
he  and  his  associates  were  employed  to  do  exactly  in  the  manner 
they  expected  to  do  it.  To  permit  recovery  in  this  case  would  make 
it  impossible  to  deny  recovery  in  any  case  where  a  fireman  of  a 
stationary  or  marine  boiler  in  the  performance  of  his  ordinary 
and  accustomed  labor  succumbs  to  heat  prostration."72 

In  Massachusetts  it  was  held,  in  the  case  of  an  employee  working 
in  a  pit,  that  since  there  was  no  evidence  that  the  heat  in  the  pit 
was  greater  than  elsewhere  outside  and  no  evidence  that  the  em- 
ployee was  required  to  work  in  the  pit  after  he  found  that  the 
heat  was  loo  severe  for  him,  it  would  reverse  the  award  which  the 
board  had  made  in  his  favor.73  On  a  second  hearing  it  was  held 
that  the  employee  suffered  an  injury  arising  out  of  the  employ- 
ment.74 

71.  State  ex  rel,  Rau  v.  District  Court  Ramsey  Co.,  138  Minn.  250,  164 
N.  W.  916,  15  N.  C.  C.  A.  679,  1  W.  C.  L.  J.  93. 

72.  Roach  v.  Kelsy  Wheel  Co.,  200  Mich.  299,  167  N.  W.  33  (1918),  17 
N.  C.  C.  A.  999,  1  W  C.  L.  J.  1025. 

73.  In  re  McCarthy,  230  Mass.  429,  119  N.  E.  697  (1918),  16  N.  C.  C.  A. 
754. 

74.  123  N.  E.  87,  4  W.  C.  L.  J.  96. 
'470 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §    21'.) 

A  brewery  wagon  driver  began  work  at  7  a.  m.  At  3  p.  m.,  he  a- 
lighted  from  his  wagon  about  5  miles  from  the  city  where  he  had 
been  working.  He  walked  around  apparently  suffering  from  the 
heat,  and  in  about  10  minutes  dropped  dead.  The  death  was  held  to 
be  due  to  an  accidental  injury  arising  in  the  course  of  the  em- 
ployment, but  not  out  of  it,  and  compensation  was  denied.75 

An  employee  had  been  feeling  badly  for  a  day  or  two,  apparently 
on  account  of  the  heat,  the  temperature  being  90  degrees  and  th.- 
humidity  82,  which  was  excessive.  He  was  persuaded  to  stay  at 
his  work  until  11:40,  though  he  stated  he  was  "all  in"  and  had 
a  "touch  of  the  heat."  At  6:30  p.  m.  he  was  found  dead  near 
his  work.  Compensation  was  awarded  on  the  ground  of  accidental 
death  by  sunstroke.76 

The  claimant's  deceased  husband  was  overcome  by  heat  while 
working  at  the  defendant's  lunch  counter  on  a  hot  August  day 
in  1917,  and  died  within  two  hours.  There  was  nothing  to  show 
that  the  place  where  the  employee  was  working  was  hotter  than 
the  outside  atmosphere,  or  that  he  was  affected  by  different  heat 
conditions  than  prevailed  in  the  community  at  large.  The  com- 
missioner, whose  language  was  adopted  by  the  Supreme  court  of 
Pennsylvania,  said:  "The  term  'Personal  injury'  in  our  act  is 
confined  to  injuries  of  accidental  origin  and  such  diseases  as 
naturally  result  therefrom,  and  must  be  held  to  include  any 
form  of  bodily  harm  or  incapacity  (accidentally)  caused  by  (either) 
external  violence  or  physical  force.  *  *  *  A  stroke  by  lightning, 
a  stroke  from  the  direct  rays  of  the  sun,  a  heat  stroke,  or  heat 
prostration,  are  untoward,  unexpected  mishaps,  and  accidental 
injuries  within  the  meaning  of  the  act.  *  *  *  It  is  immaterial 
whether  the  heat  prostration  is  produced  by  artificial  heat,  or  by 
the  natural  heat  of  the  sun.  directly  or  through  the  heated  atmos- 
phere, if  the  exhaustion  comes  from  heat  in  the  course  of  em- 
ployment." The  court  in  this  case  also  quotes  from  Lord  Loreburn, 
for  the  House  of  Lords  in  Ismay,  Inrie  &  Co.  v.  William- 


75.  Campbell  v.  Clausen-Flannagan  Brewery,  183  N.  Y.  App.  Div.  4»0, 
171  N.  Y.  Supp.  522  (1918),  17  N.  C.  C.  A.  1001.  2  W.  C.  L.  J.  676. 

76.  Hernon  v.  Holahan,  182  App.  Div.  126.  169,  N.  Y.  Supp.  705  (1918), 
1  W.  C.  L.  J.  1120,  17  N.  C.  C.  A.  1002. 

471 


§  249  WORKMEN'S  COMPENSATION  LAWS. 

son  Law  Rep.  A.  C.  1908,  437:  "This  man  died  from  an  accident. 
What  killed  him  was  a  heat  stroke,  coming  suddenly  and  un- 
expectedly upon  him  while  at  work.  Such  a  stroke  is  an  unusual 
effect  of  a  known  cause,  often,  no  doubt,  threatened,  but  generally 
averted  by  precaution  which  experience,  in  this  instance,  had 
not  taught.  It  was  an  unlooked  for  mishap  in  the  course  of  his 
employment.  In  common  language,  it  was  a  case  of  accidental 
death."77 

Under  the  Pennsylvania  Act  it  is  not  necessary  that  the  accident- 
al injury  should  arise  "out  of  the  employment"  it  is  compensable 
if  it  arises  in  the  course  of  the  employment. 

Where  a  coal  hauler  was  engaged  on  a  very  hot  day  in  shoveling 
coal  from  a  wagon  at  a  place  where  there  was  no  shade,  and  was 
stricken  with  heat  or  sunstroke,  and  later  died,  he  suffered  a  com- 
pensable injury.78 

While  an  employee  is  engaged  in  stacking  bags  of  cement  in  a 
warehouse  with  an  iron  roof  and  which  had  no  windows,  he  was 
overcome  with  heat.  The  thermometer  outside  registered  105  de- 
grees in  the  shade.  It  was  held  that  he  was  especially  exposed  to 
the  danger  of  heat  stroke  and  suffered  an  accidental  injury.79 

A  bricklayer,  employed  in  a  place  shut  off  from  prevailing  breeze 
and  subjected  to  reflected  heat,  collapsed  from  heat  strokes.  It 
was  held  that  predisposition  to  heat  stroke  is  no  bar  to  compen- 
sation, and  that  the  heat  stroke  was  in  this  case  an  accidental 
injury.80 

Compensation  will  be  allowed  for  injuries  caused  by  artificial 
heat  used  in  connection  with  workmen's  employment,  as  distin- 

77.  Lane  v.  Horn  &  Hardart  Baking  Co.,  261  Pa.  329,  104  Atl.  615,  17 
N.  C.  C.  A.  998,  2  W.  C.  L.  J.  928.     The  Pennsylvania  act  was  amended 
in   1920  so  as  to   include  death   from  sunstroke.     Pa.  St.    1320  §  21916; 
Matis  v.    Schaeffer,  —  Pa.  —   1921,  113  Atl.    64.     Death  from    sunstroke 
accidental,  Pack  v.  Prudential  Casualty  Co.,  170  Ky.  47,  185  S.  W.  496, 
L    R.  A.  1916  E.  952. 

78.  Cunningham    v.    Donovan    et  al.,    93   Conn.   313,  105  Atl.    622,  3 
W.  C.  L.  J.  584. 

79.  Fenslar  v.  Associated  Supply  Co.,    ICal.  I.  A.  C.  Dec.  447,  12  N.  C. 
C.  A.  321;    Lillman  v.  Sperry  Engineering  Co.,  1  Conn.  C.  D.  408. 

80.  McGarva  v.  Hills,  1   Conn.  Comp.  Dec.  533. 
472 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    249 

guished  from  natural  heat  of  the  sun's  rays.  Thus,  where  a  work- 
man, engaged  in  raking  out  ashes  that  had  fallen  from  the  furnace, 
suffered  from  an  attack  of  heat  stroke  and  died  as  a  result  thereof, 
it  was  held  that  the  death  was  due  to  an  accident.81 

Where  a  workman  died  as  a  result  of  heat  stroke,  and  defendant 
contended  that  heat  strokes  and  sun  stroke  were  not  accidents. 
the  court  said:  ''The  word  'accident,'  as  usually  interpreted  in 
compensation  statutes,  would  in  most  circumstances  properly  be 
applied  to  both  mishaps,  and  injury  arising  from  either  may  be 
regarded  as  having  been  accidentally  received."88 

Where  other  causes  contribute  to  the  cause  of  death,  the  question 
as  to  whether  the  injury  was  caused  by  an  accident  is  one  of  fact 
for  the  judge.  It  was  so  held  where  a  fireman's  death  was  caused 
by  cerebral  hemorrhage,  due  to  the  heat  and  drinking  of  excessive 
quantities  of  water.83 

An  engineer  suffered  from  heat  stroke  while  working  in  an 
engine  room  of  a  steamer,  and  died  later  from  the  effects.  The 
heat  was  normal  for  the  climate.  It  was  held  that  death  was 
due  to  an  accidental  injury.84 

An  employee  in  a  mine  died  as  a  result  of  heat  prostration.  The 
evidence  showed  that  the  place  where  deceased  was  working  was 
cooler  than  out  in  the  open,  and  there  was  no  artificial  heat.  In 
denying  compensation,  the  board,  in  discussing  the  question,  cited 
a  number  of  cases  of  injuries  resulting  from  atmospheric  conditions, 
such  as  frostbites,  sunstrokes,  lightning,  etc.,  in  which  the  rule 
was  applied  which  excludes  an  injury  not  fairly  traceable  to  the 
employment  as  a  contributing  proximate  cause  and  was  a  hazard 
to  which  the  workman  would  have  been  exposed  apart  from  his 

81.  Ismay,  Imre  &  Co.  v.  Williamson.  77  L.  J.  P.  C.  107  (1908),  A.  C. 
437,  1  B.  W.  C.  C.  232,  6  N.  C.  C.  A.  714;     Wajteniak  v.   Pratt   &  Cady 
Co.,    Inc.  1  Conn.  C.  Dec.  545. 

82.  Walsh  v.  River  Spinning  Co.,  41  R.  I.  490,  103  Atl.  1025,  17  N.  C.  C. 
A.  998,  2  W.   C.   L.  J.  689. 

83.  Johnson  v  S.  S.  "ToTrington,"  (Owners  of),  3  B.  W.  C.  C.  68  (190») 
fi  X.  C.  C.  A.  715;     Olson  v.  Steamship  "Dorset"  (owners  o$  (1913)  W. 
C.  &  Ins.  Rep.  604,  6  B.  W.  C.  C.  658,  6  N.  C.  C.  A.  115. 

84.  Maskery  v.   Lancashire   Shipping  Co.  Ltd..  (1914)  W.    C.  ft  Ins. 
Rep.  290,  6  N.  C.  C.  A.  708. 

473 


§  249  WORKMEN'S  COMPENSATION  LA\V 

employment ;  in  other  words,  the  causative  danger  must  be  peculia  r 
to  the  work  and  not  common  to  the  neighborhood.  In  the  light  of 
such  authorities,  the  board  found  that  the  evidence  in  the  in- 
stant case  did  not  justify  a  finding  that  the  employee  died  of  heat 
prostration,  superinduced  by  his  employment.85 

Where  an  employee  suffers  from  paralysis  due.  to  cerebral  hemor- 
rhage, caused  by  heat  and  overexertion,  it  was  held  that  his  dis- 
ability was  caused  by  an  accident.80 

The  English  decisions  make  a  distinction  between  the  prostra- 
tion caused  by  the  sun's  rays  and  prostration  caused  by  artificial 
heat.  In  the  former  class,  the  injury  is  denied  to  be  one  arising 
out  of  the  employment,  and  in  the  latter  the  employment  is  con- 
sidered to  be  the  source  of  the  injury.  Thus,  where  an  employee 
was  seized  with  heat  apoplexy  (sunstroke),  it  was  held  that  this 
was  not  an  accident.87 

Where  a  boss  roller  in  a  rolling  mill  was  attacked  by  heat 
prostration,  resulting  in  death,  it  was  held  that  the  prostration 
was  an  injury,  within  the  meaning  of  the  Ohio  Act.88 

Where  a  laborer,  employed  in  the  wash-house  of  defendant's 
brewery,  was  apparently  overcome  by  heat,  and  died  later,  the  court, 
in  holding  that  deceased  did  not  come  to  his  death  as  the  result 
of  an  accident,  said:  "The  deceased  in  this  case  was  subjected  to 
the  same  dangers  from  the  excessive  atmospheric  conditions  of  a 
humid  summer  day,  as  was  every  other  person  who  had  to  work 
in  the  general  locality  of  the  brewery  where  he  was  employed.  I 
am  unable  to  find,  from  the  evidence,  that  there  was  anything 
so  unusual  about  the  washroom  of  the  brewery  as  to  cause  this 

85.  Mooney  v.  Illinois  Steel  Co.,  111.  Ind.  Bd.  No.  740,  Sept.  1915,  12  N. 
C.  C.  A.  319. 

86.  La  Veck  v.  Park  Davis  &  Co.,  190  Mich.  604,  157  N.  W.    72,  12  N. 
C.  C.  A.  325. 

87.  Robson,  Eckford  &  Co.,  Ltd.  v.  Blakey,  1912  S.  C.  334,  49  Sc.  L.  R. 
254,  5  B.  W.  C.  C.  536,  6  N.  C.  C.  A.  710;     Rodger  v.  Paisley  School  Be  , 
49  Sc.  L.  R.  413,  5  B.  W.  C.  C.  547,  6  N.  C.  C.  A.  710;    Tank  v.  City  of 
Milwaukee,  Wis.,  Wkm.  Comp.  Rep.  80  (1914),  6  N.  C.  C.  A.  711;     Stin- 
nette  v.  Gillespie  Co.,  Ky.  W.  C.  D.  Bull.  (Nov.  1,  1917  to  Jan.  22,  1919), 
Pi    5. 

88.  Ress  v.  Youngstown  Sheet  &  Tube  Co.,  Ohio  I.  C.  Nov.  13,  1914,  6 
N.  C.  C.  A.  713;    McGarva  v.  Hills,  1  Conn.  C.  D.  533. 

474 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §    249 

accident.  There  is  some  evidence  to  the  effect  that  it  was  cooler 
there  than  outside.  There  is  certainly  no  evidence  that  would 
justify  me  in  reaching  the  conclusion  tlmt  it  was  hotter  there.  The 
work  he  had  been  doing  was  of  the  usual  character  and  he  was, 
therefore,  subjected  to  no  unusual  strain.  He  probably  was 
overcome  by  heat;  he  had  some  beer  to  drink,  and  one  of  th«; 
witnesses  testified:  Tie  was  hitting  the  ice-water  up  pretty  strong 
tlmt  morning.'  There  is,  in  fact,  considerable  evidence  whi<-h 
would  justify  me  in  reaching  the  conclusion  that  his  condition 
m.iy  have  been  induced  by  drinking  water  excessively  or  by  al- 
coholism. Under  all  the  circumstances  of  this  case,  after  a  care- 
ful examination  of  the  authorities,  I  am  of  opinion  that  the  heat 
Mroke  which  deceased  had  was  not  an  accident  arising  out  of  his 
employ  emnt."80 

Where  the  natural  heat  is  intensified  by  artificial  means,  the 
tendency  is  to  place  the  injury  on  the  same  footing  as  heat  pros- 
tration from  artificial  heat,  and  to  allow  compensation.  Thus, 
where  a  seaman  was  on  duty  on  a  blackened  steel  deck  for  several 
hours,  with  the  temperature  ranging  from  108°  to  120°  Fahrenheit, 
and  suffered  from  blindness,  due  to  this  exposure,  it  was  held  that 
the  employment  involved  special  exposure  to  the  risk  of  sunstroke. 
and  compensation  was  allowed.00 

A  carpenter  suddenly  became  unconscious  and  died,  and  medic«l 
experts  attributed  his  death  to  heat  exhaustion.  An  autopsy  was 
performed,  and  it  was  found  that  the  conditions  which  produced 
death  could  not  have  been  produced  by  heat  stroke.  It  was  shown 
that  deceased  had  been  in  good  health  prior  to  the  date  of  his 
death,  but  that,  shortly  before,  he  had  been  told  by  his  employer  that 
his  work  was  very  defective  and  that  the  latter  could  no  longer 
use  him.  The  claim  department  recommended  that  the  claim  be 

89.  Burke  v.  Ballantine  &  Sons,  (Essex  C.  P.)  38  N.  J.  L.  105.  12  N.  C. 
C.  A.  322;     Jaskulka  v.  Hartford  &  New  York  Transportation  Co,  1  Conn. 
Comp.  542. 

90.  Davies  v.  Gillespie.  105  L.  T.  494,  28  T.  L.  R.  6,  56  Sol.  J.  11,  5  D. 
W.  C.  C.     64  (1911),    6  N.  C   C.  A.    713;       Morgan  v.  8.  S.    "Zenaida" 
(owners  of).  25  T.  L.  R.  446,  2  B.  W.  C.  C.  19  (1909).  6  N.  C.  C.  A.  714. 


475 


§  249  WORKMEN'S  COMPENSATION  LAWS. 

disallowed,  and  the  report  was  adopted  by  the  Industrial  Com- 
mission.91 

Where  an  employee  suffered  from  heatstroke  while  working  in 
a  trench,  it  was  held  to  be  an  injury  arising  out  of  the  employment, 
and  compensation  was  allowed.92 

Sunstroke,  though  classed  as  a  disease,  is  not  a  disease  strictly 
speaking,  but  is  an  injury  of  an  accidental  nature  under  the 
Federal  Act.93 

"Where  an  employee,  engaged  in  shoveling  coal,  collapsed  from 
the  effects  of  the  sun's  heat,  and  later  died  as  a  result  thereof,  it 
was  held  that  the  employee  sustained  a  personal  injury  within  the 
meaning  of  the  Workman's  Compensation  Act.  The  court  said: 
"This  untoward  event  or  unexpected  condition  under  which 
Ahern's  work  was  carried  on  therefore  constituted  an  accident 
which  directly  and  contemporaneously  caused  this  localized  ab- 
normal condition.  We  conclude  that  under  the  authority  of  our 
decisions  Ahern's  death  from  sunstroke  was  a  compensable  injury. 
The  second  question,  'Whether  Ahern  was  exposed  to  such  risk  as 
to  make  the  results  thereof  compensable,'  is  determined  by  as- 
certaining whether  the  sunstroke  arose  'in  the  course  of  and  out  of 
his  employment.'  It  clearly  appears  that  he  was  doing  what  he 
was  employed  to  do  when  he  was  stricken ;  hence  the  sunstroke  did 
occur  in  the  course  of  his  employment.  'An  injury  "arises  out  of" 
an  employment  when  it  occurs  in  the  course  of  the  employment  and 
as  a  proximate  cause  of  it.'  Larke  v.  Hancock  Mutual  Life  Ins. 
Co.,  90  Conn.  303,  97  Atl.  320,  L.  R.  A.  1916  B,  584.  An  em- 
ployment will  be  a  proximate  cause  of  an  injury  when  it  is 
the  natural  and  necessary  incident  of  the  employment,  or  when  the 
employment  brings  with  it  greater  exposure  to  injurious  results 
than  those  to  which  persons  generally  in  that  locality  are  ex- 
posed, and  such  injurious  result  occurs  in  the  course  of  the  em- 

91.  In  re  Knittle,  Ohio  Ind.  Comm.  No.  89545,  July  1915,  12  N.  C.  C.  A. 
pg.  317. 

92.  Kringel  v.  Meyers,    111.  I.  Bd.  Sept.  12,  1914,    12  N.  C.  C.  A.  318; 
Thompson  v.  Banning  Gas  &  Lighting  Oo.,  2  Gal.  I.  A.  C.  571   (1915),  12 
N.  C.  C.  A.  327. 

93.  Re  J.  J.  Walsh,  Op.  Sol.  Dep.  C.  &  J.  pg.  193. 
476 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT.  §   251 

ployment.  Larke  v.  John  Hancock  Life  Ins.  Co.,  supra.  The 
finding  explicitly  brings  this  case  within  this  rule.  It  does  appear 
that  the  sunstroke  was  an  accident  of  Ahern 's  employment.  And 
that  his  exposure  and  risk  to  sunstroke  in  this  employment  was 
fur  greater  than  that  of  the  rest  of  the  community.  This  is 
the  final  test  applied  by,  us  in  the  Larke  Case.  That  Ahern  was 
not  exposed  to  sunstroke  in  greater  degree  than  others  in  the  same 
employment,  and  than  many  other  out-of-door  workers,  we  hold  to 
be  immaterial,  as  we  did  in  the  Larke  Case."84 

§  250.  Sympathetic  Affection  of  one  eye  by  Injury  to  the 
Other. — An  employee  was  struck  in  the  eye  by  a  chip  of  steel. 
\\liirh  caused  total  blindness  of  the  injured  eye,  and  all  of  the  phy- 
sicians advised  an  operation  for  its  removal  in  order  to  prevent 
sympathetic  ophthalmia  of  the  other  eye,  which  might  cause  its 
loss.  The  employee  objected  to  the  operation  unless  it  could 
!»<•  performed  in  Italy.  The  court  held  that  this  objection  was 
unreasonable  and  that  the  disability  of  the  employee  was  due  to 
his  own  unreasonable  refusal  to  undergo  an  operation.03 

An  i-mployee  suffered  an  accidental  injury  which  caused  a 
traumatic  cataract.  The  other  eye  was  sympathetically  affected, 
ra  using  total  disability.  This  was  held  to  be  a  compensable 
in.jury.06 

§  251.  Testicles:  Injuries  to: — Where  a  swamper  slipped  on  a 
log,  fell  and  injured  his  right  testicle,  necessitating  an  operation 
which  later  resulted  in  death,  it  was  held  that  the  death  was  due 
to  tlie  accident,  and  compensation  was  awarded.07 

94.  Ahern  v.  Spier  et  al.,  91  Conn.  151,  105  Atl.  340,  3  W.  C.  L.  J.  221 . 

95.  Nicotero  v.  Globe  Indemnity  Co.,  2   Mass.  Wkm.  C.  C.  (1914),  531, 
10  N.  C.  C.  A.  187. 

96.  Stachuse  v.  Fidelity  and  Casualty  Co.,  2  Mass.  Ind.  Ace.  Bd.  324; 
Weber  v.  Geo.  Haiss  Mfg.  Co.,  —  App.  Div.—  (1320),  181  N.  Y.  S.  140,  5 
W.  C.  L.  J.  872. 

97.  Vasey  v.  Industrial  Comni.  of  Wis.  167  Wis.  479.  167  N.  W.  823.  17 
N.   C.  C.  A.  89,  2  W.  C.  L.  J.  424. 

-    477 


§  251  WORKMEN'S  COMPENSATION  LAW 

Where  a  canvasser  was  riding  a  bicycle,  furnished  by  his  em- 
ployers for  his  work,  and  when  the  bicycle  skidded  he  was  thrown 
violently  to  the  ground,  with  the  result  that  a  testicle  was  crushed 
and  bruised,  causing  cancer,  from  which  he  died,  compensation 
was  allowed.98 

Where  a  carpenter  was  accidentally  pushed  off  of  two  beams 
upon  which  he  stood,  and  fell  upon  and  astride  of  a  single  beam, 
suffering  an  injury  to  one  of  his  testicles,  necessitating  its  removal, 
compensation  was  allowed.  The  court  held  that  the  injury  pro- 
duced temporary  disability  and  came  within  section  II,  paragraph 
11,  subdivision  (a)  of  the  New  Jersey  Act." 

A  workman  engaged  in  splitting  stones  was  injured  by  a  frag- 
ment of  stone  flying  and  striking  his  left  testicle.  The  injured 
testicle  had  to  be  removed.  Later  the  right  testicle  was  found 
to  be  tubercular,  and  this  tubercular  condition  extended  to  the 
lungs.  Physicians  claimed  that  the  tubercular  condition  would 
have  developed  in  the  absence  of  the  accident.  It  was  held  that  the 
claimant  failed  .to  show  any  causal  relationship  between  the  trau- 
ma hereinbefore  described  and  the  tuberculous  conditions  present 
in  his  system,  whereupon  compensation  was  allowed  for  the  ori- 
ginal injury  and  denied  for  the  tubercular  condition.1 

An  automobile  repair  tester  strained  himself  in  cranking  a  motor. 
The  accident  necessitated  removal  of  a  testicle.  A  tumor  follow- 
ed the  operation.  The  commission  awarded  him  compensation, 
which  the  Appellate  Division  affirmed  unanimously  and  without 
opinion.2  The  Commission  decided  to  award  compensation  for 
impaired  earning  power  to  an  iron  worker,  incapacitated  by  a  blow 
on  the  testicle,  due  to  slipping  of  a  pair  of  tongs;3  but,  for  in- 
sufficiency of  evidence,  denied  compensation  to  a  blacksmith  who 
claimed  to  have  been  struck  on  the  testicle  by  a  hammer.4 

98.  Haward  v.  Rowsell  and  Mathews,   (1914),  W.  C.  &  Ins.  Rep.  314, 
7  B.  W.  C.  C.  552,  9  N.  C.  C.  A.  1028. 

99.  Coslett  v.  Shoemaker,  38  N.  J.  L.  J.  116,  10  N.  C.  C.  A.  1046. 

1.  Frabbie  v.  Freeburg,  1  Conn,  C.  D    614. 

2.  Smythe  v.   Packard   Motor  Co.,  181   N.   Y.  App.  Div.  907,  Nov.   14, 
1917,  137  N.  Y.  S.   1128. 

3.  Muller  v.  Ludlum  Steel  Co.  N.  Y.  Comp.  Bui.,  Vol.   2,  pp.  15,21. 

4.  Cronk  v.  Turner,  S.  D.  R.,  vol.  13,  p.  547,  N.  Y.  Comp.  Bui.,  Vol.  2, 
p.  167,  Apr.  11,  1917. 

478 


MEM  M.    IN. JURY  OR  DEATH   BY  ACCIDENT.  §    252 

No  compensation  will  be  allowed  under  the  Indiana  act  "where 
there  is  no  evidence  that  the  removal  of  a  testicle  had  or  would 
in  the  slightest  degree  impair  the  future  usefulness  or  opportunity 
of  appellee,  or  that  it  had  or  would  produce  any  disability  for 
work,  or  a  loss  of  any  physical  function." 

Compensation  will  however  be  allowed  for  injury  to  testicles 
where  it  resulted  in  temporary  disability.5 

Under  some  acts  compensation  is  allowed  on  the  ground  of  im- 
pairment of  a  physical  function.0 

§  252.  Tetanus. — A  street  worker  stepped  upon  a  rusty  nail, 
thereby  piercing  his  foot.  The  wound  became  poisoned,  resulting 
in  tetanus,  from  whu-h  lie  died.  Compensation  was  awarded.7 

An  employee  received  a  lacerated  wound,  as  the  result  of  being 
struck  by  the  bucket  of  a  dredger,  and  developed  tetanus.  This 
was  held  to  be  the  result  of  the  accidental  injury.8 

Shortly  after  a  fall  of  coal  from  the  roof  of  a  mine  at  the  place 
where  a  miner  was  working,  he  complained  of  his  foot  hurting. 
Twelve  days  later  he  died  of  tetanus.  A  physician  found  an  abra- 
sion on  the  outer  side  and  a  scar  on  the  sole;  both  wounds  were 
healing,  and  at  the  time  of  his  death  the  wounds  were  healed.  The 
court  found  that  the  death  was  due  to  an  accident.0 

Where  a  longshoreman  died  as  a  result  of  tetanus,  caused  by 
having  his  foot  crushed  and  lacerated  by  lumber  falling  upon  it,  it 
was  held  that  his  death  was  due  to  the  accidental  injury,  and  com- 
pensation was  awarded.10 

Where  a  gardener  stepped  upon  a  nail  while  at  work,  and  a 
month  later  died  from  tetanus,  it  was  held  that  the  evidence  sup- 
ported a  finding  that  the  death  resulted  from  the  injury11 

5.  Centlivre  Beverage  Co.  v.  Rosa, —  Ind.  App.  •  -,  125  N.  E.  220, 
5  W.  C.  L.  J.  212;  International  Harvester  Co.,  v.  Indus.  Comm.  157 
Wis.  167,  147  N.  W.  53,  5  N.  C.  C.  A.  822. 

B.     Hercules  Powder  Co.   v.   Morris  County  Ct.  of  Common  Pleas,  - 
N.  J. ,  107  Atl.  443,  4  W.  C.  L.  J.  523. 

7.  Putnam  v.  Murray,  174  N.  Y.  App.  Div.  720,  160  N.  Y.  Supp.  811. 

8.  Oaks  v.  Berkeley  Steel  Co.,  1  Cal.  !,  A.  C.  Part  2,  218. 

9.  Stapleton  v.  Dinnington  Main  Coal  Co..  1912.  5  B.  W.  C.  C.  602. 

10.  Rroderick  v.  Southern  Pac.  Co.,  4  N.  Y.  St.  Dep.  Rep.  371. 

11.  Walker  v.  Mulllns,  (1909).  1  B.  W.  C.  C.  211  C.  A. 

479* 


§  254  WORKMEN'S  COMPENSATION  LAWS. 

§  253.  Trachoma. — Where  an  employee,  who  had  been  severe- 
ly burned  about  the  face  and  eyes,  was  found  to  be  suffering 
from  trachoma,  but  the  evidence  showed  that  this  condition  of 
the  eyes  was  due  to  infection,  and  not  to  the  burns  received  by 
the  accident,  compensation  was  denied,  because  the  disability 
resulting  from  the  burns  did  not  last  beyond  the  waiting  period 
of  two  weeks.  Medical  expenses  necessitated  by  the  burning 
were  allowed.12 

Where  a  workman,  who  had  been  injured  in  the  eye  by  a  fly- 
ing piece  of  steel,  claimed  compensation  for  trachoma,  alleged 
to  have  been  caused  by  the  injury.  The  application  was  dismissed, 
the  court  saying:  "Trachoma  is  recognized  as  a  disease  by 
the  medical  profession  and  it  is  said  not  to  be  brought  about  by 
injury  to  the  eye  or  by  foreign  particles  getting  into  the  eye."13 

Where  an  employee,  suffering  from  trachoma,  was  incapaci- 
tated, following  the  blowing  of  cement  dust  in  his  eyes,  com- 
pensation was  denied  for  the  continued  disability  due  to  the  dis- 
ease of  trachoma,  which  is  a  highly  infectious  disease,  not  caus- 
ed by  an  accident.14 

§  254.  Tuberculosis. — An  electrician  was  engaged  in  string- 
ing wires  in  an  asli  cellar  and  became  ill  from  coal  gas.  Three 
months  later  he  died  of  pulmonary  tuberculosis.  It  was  held  that 
there  was  sufficient  evidence  to  support  a  finding  that  death  was 
due  to  the  gas  poisoning,  and  compensation  was  allowed.15 

Under  the  Federal  Act,  tuberculosis  caused  by  brass  poisoning 
was  held  to  be  an  injury.16 

Where  a  stevedore  ruptured  himself  on  the  right  side,  neces- 
sitating an  operation,  and  later  he  developed  pulmonary  tubercu- 

12.  Guardian  Gas.  Guar.  Co.  v.    Castilo,  1  Cal.  Ind.    A.  C.    D.  (No.  9, 
1912)  5,  6  N.  A.  C.  C.  897. 

13.  In  re  Leware,  Ohio  I.  C.  Aug.  21,  1914,  6  N.  C.  C.  A.  897. 

14.  Beauchamp  v.  Chanslor-Canfield  Midway  Oil  Co.,  2  Cal.   I.  A.  C. 
285. 

15.  Odell  v.  Adirondack  Electric  Power  Co.,  223  N.  Y.  686,  119  N.  E. 
1063,  17  N.  C.  C.   A,  877;  Black   v.  Traveler's  Ins.   Co.,  1   Mass.  I.   A.  Bd. 
319. 

16.  Re  Edward  Devine  Op.  Sol.  Dept.  L.  pg.  277. 
480 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDKNT.  §    254 

losis,  from  which  he  died,  on  conflicting  medical  testimony,  the 
county  court  held  that  the  applicant  had  not  sustained  the  burden 
of  showing  that  there  was  any  connection  between  the  rupture 
and  the  death.17 

Decedent  sustained  a  severe  injury  to  the  lower  part  of  his 
back,  as  the  result  of  an  accidental  fall.  Later  he  died  from  pul- 
monary tuberculosis,  a  disease  with  which  he  was  afflicted  prior 
to  the  date  of  the  injury.  In  affirming  an  award,  the  court  said: 
"The  evidence  authorizes  the  inference  that  the  accidental  injury 
suffered  by  Cruse  while  in  appellant's  employment  aroused  the 
latent  germs  of  the  disease  to  which  he  was  predisposed,  mate- 
rially accelerated  the  disease,  and  caused  his  death  earlier  than  it 
would  otherwise  have  occurred."18 

Compensation  was  denied  for  disability  caused  by  tubercu- 
lar pleurisy  following  an  accidental  injury,  upon  failure  to  show 
that  the  disease,  which  developed  three  weeks  after  the  accident, 
was  due  to  the  accidental  injury.19 

Tuberculosis  which  develops  gradually  as  an  occupational  dis- 
ease, and  is  not  due  to  traumatism,  is  not  a  compensable  injury.20 

Where  a  gradually  lowering  vitality,  pains,  miliary  tubercu- 
losis and  death  successively  followed  a  gas  explosion,  which  caus- 
ed first  degree  burns  about  the  employee's  face,  the  employee 

17.  Kemp  v.  Clyde  Shipping  Co.,  Ltd  ,  119  L.  T.  R.  131  (1918)  17  N.  C. 
C.  A.  875.   In  re  Nicholas  Hurfurth,  3rd  A.  R.  U.  S.  C.  C.  143.     In  re  Joe 
Wilson,  3rd  A.  R.  U.  S.  C.  143;    In  re  Frank  Gale,  3rd  A.  R.  U.  S.  C. 
C.  144;  Garnett  v.  Buchanan.  3rd  A.  R.  U.  S.  C.  C.  145. 

18.  Retmier  v.  Cruse.  — ,  Ind  App.,  — ,  119  N.  E.  32,  17  N.  C.  C.  A.  870; 
1  W.  C.  L.  J.  971;    Hatch  v.  J.  Newman  &  Sons,  1  Conn.  C.  D.  65;  Nelson 
v.  McLarnon  &  Co.  Inc.,  (1916),  9  N.  Y.  S.  Dep.  Rep.  325;   Bakeman  v. 
Devine  &  Sons,  (1916),  9  N.  Y.  S.  Dep.  Rep.  322.   Glennon's  Case  —  Mass. 
— ,  (1920),  128  N.  E.  942,  7  W.  C.  L.  J.  210.    In  re  F.  A.  Peterson,  3rd  A. 
R.   U.   S.  C.  C.   145;    Republic  Iron  &  Steel  Co.  v.  Markiowicz— 111.— , 
(1921),  129  N.  E.  710. 

19.  Gomez  v.  Southern  Eureka  Mining  Co.  1  Cal.  I.  A.  C.  Part  1,  180; 
Frabbie  v.  Freeburg,  1  Conn.  C.  D.  615. 

20.  Dependents  of  William  Francis  Kane  v.  New  Haven  Union  Co., 
1  Conn.  C.  D.  492. 

481 

W.  C.— 31 


§  254  WORKMEN'S  COMPENSATION  LAWS. 

having  previously  been  in  good  health,  the  death  was  held  to  have 
been  caused  by  the  accident.21 

Where  a  workman,  injured  by  an  explosion,  claimed  that  subse- 
quently contracted  tuberculosis  was  directly  caused  by  the  acci- 
dent, it  was  held,  on  conflicting  testimony,  that  he  had  not  sustain- 
ed the  burden  of  his  contention,  and  compensation  was  awarded 
for  the  direct  injuries,  but  not  for  the  disability  due  to  the  tuber- 
culosis.22 

Where  an  employee  working  on  a  crane  was  compelled  to  jump 
into  the  river  to  save  himself,  and  the  exposure  which  resulted 
caused  pulmonary  tuberculosis,  it  was  held  that  he  suffered  an 
accidental  injury.23 

Where  an  employee  at  the  time  he  received  a  severe  blow  on  or 
over  the  spine,  was  affected  with  Pott's  disease,  or  tuberculosis  of 
the  spine,  and  that  said  disease,  by  reason  of  the  injury,  became 
incited  to  virulent  activity,  rendering  the  employee  totally  and 
probably  permanently  disabled  about  five  weeks  after  the  acci- 
dent, compensation  was  allowed,  the  court  saying:  "Likewise  the 
courts,  consistent  with  the  theory  of  workmen's  compensation 
acts,  hold  with  practical  uniformity  that,  where  an  employee  af- 
flicted with  disease  receives  a  personal  injury  under  such  circum- 
stances as  that  he  might  have  appealed  to  the  relief  on  account  of 
the  injury  had  there  been  no  disease  involved,  but  the  disease  as 
it  in  fact  exists  is  by  the  injury  materially  aggravated  or  acceler- 
ated, resulting  in  disability  or  death  earlier  than  would  have  oth- 
erwise occurred,  and,  the  disability  or  death  does  not  result  from 
the  disease  alone  progressing  naturally  as  it  would  have  done  un- 
der ordinary  conditions,  but  the  injury,  aggravating  and  accel- 
erating its  progress,  materially  contributes  to  hasten  its  culmi- 
nation in  disability  or  death,  there  may  be  an  award  under  'the 
compensation  acts."24 

21.  Heileman  Brewing  Co.  v.  Schultz,  161  Wis.  46,  152,  N.  W.  466,  15 
N.  C.  C.  A.  643. 

22.  Feldman  v.  Westinghouse  Electric  and  Min.  Co.,  36  N.  J.  L.  J.  48, 
2a.    Rist  v.  Larkin  &  Sangster,  156,  N.  Y.  Supp.  875,  171  App.  Div.  868: 

In  re  Evar  Soderstrom,  3rd  A.    R.  U.  S.  C.  C.  146. 
24.    In  re  Colan,  64  Ind.  App.—,  116  N.  E.  842,  15  N.  C.  C.  A.  633. 
482 


PERSONAL   IN.iriJY  <>K  I»KATM    |:V    kOdDBNT,  §    254 

Aii  employee  surt'eivd  a  strain,  and  later  died  of  milary  tuber- 
culosis. Medical  testimony  was  to  the  effect  that  the  conditions 
t'(. I  lowing  an  injury  that  are  necessary  to  cause  the  tubercular 
germ  to  become  active  were  not  present,  and  in  no  case  could  a 
strain  cans.-  the  germs  to  become  active.  The  court  held  that 
the  evidence  failed  to  show  any  relation  between  the  injury  and 
ihe  diseased  condition  which  caused  the  death.25 

Where  tuberculosis  of  the  bone  developed  several  months  subse- 
quent to  an  injury  to  a  wrist,  and  evidence  showed  that  no  tuber- 
cular condition  existed  prior  to  the  injury,  it  was  held  that  this 
was  an  injury,  and  compensable  under  the  California  Act.26 

Compensation  was  denied  for  disability  due  to  pulmonary  tuber- 
culosis, claimed  to  have  been  brought  on  through  exposure  during 
a  ride  in  an  automobile  provided  by  the  employer  for  taking  his 
men  to  their  place  of  work.  Medical  testimony  was  to  the  effect 
that  climatic  conditions  on  the  day  of  the  ride  had  no  effect  on 
the  disease,  nor  did  the  chill.  It  was  held  that  there  was  no  causal 
connection  between  the  claimant's  employment  and  the  tuber- 
culosis; that  "his  employment  neither  produced  the  disease  nor 
accelerated  its  progress.27 

Compensation  was  denied  for  tubercular  peritonitis,  alleged  to 
have  been  caused  by  a  fracture  of  a  leg,  because  of  insufficient 
evidence  to  show  any  connection  between  the  injury  and  the 
disease.28 

An  employee,  while  engaged  in  lifting  a  box,  fell  and  struck 
his  neck  above  the  collar  bone,  and  about  nine  months  later  he 
died  of  pulmonary  tuberculosis.  In  affirming  an  award,  the  court 
said:  "The  evidence  shows  quite  clearly,  and  the  commission  has 
found,  that  the  disease  existed  before  the  injury,  which  accelerated 
the  disease  and  shortened  life.  The  injury  caused  a  hemorrhage, 

25.  Albaugh-Dover  Co.  v.  Industrial  Bd.  of  111.  278,  111.  179,  115  N.  E. 
834,  14  N.  C.  C.  A.  545. 

26.  Soria   v.    Marshall,   3    C'al.  I.  A.    C.   96;  Stone   v.   S.  L.    Smith  Co. 
(1916)  3  Cal.  I.  A.  C. V365;   Lorenzo  v.  Begelow- Hartford  Carpet  Corp.  1 
Conn.  C.  D.  216.  In  re  James  E.  King,  3rd  A.  R.  U.  S.  C.  C.  1-M. 

27.  Dionne  v.  Fred  T.  Ley  Co.,  (Mass.)  W.  C.  Cas.  No    1632.  I'.'ir.    IL' 
N.  C.  C.  A.  314;  Franklin  v.  U.  S.  Casualty  Co.,  2  Mass.  Ind.  Ace.  Bd.  758. 

28.  Capelll  v.  Crawford,  6  N.  Y.  -8.  Dep.  Rep.  349. 

483 


§  254  WORKMEN'S  COMPENSATION  LAW 

which,  so  far  as  the  evidence  discloses,  the  deceased  never  ex- 
perienced before  or  after,  and  there  is  medical  testimony  to  the 
effect  that  such  an  injury  would  develop  the  disease  then  existing. 
If  an  employee  has  a  disease,  and,  having  the  same,  receives  an 
injury  'arising  out  of  and  in  the  course  of  employment,'  which 
acclerates  the  disease  and  causes  his  death,  such  death  results 
from  such  injury,  and  the  right  to  compensation  is  secured,  even 
though  the  disease  itself  may  not  have  resulted  from  the  injury."  29 

An  employee  was  crushed  under  a  load  of  lumber  and  sustained 
several  broken  ribs,  and  other  lesser  injuries.  He  was  confined 
to  his  bed  until  his  death,  six  weeks  later.  An  autopsy  disclosed 
that  the  decedent  had  pulmonary  tuberculosis  in  such  an  advanced 
stage  that  one  lung  had  been  entirely  destroyed  and  the  other  to 
a  considerable  extent,  also  that  he  was  suffering  from  other 
diseases.  Three  physicians  testified  that,  in  their  opinion,  his 
death  was  caused  by  pulmonary  tuberculosis,  and  that  the  injuries 
which  he  had  sustained  were  not  sufficient  either  to  cause  or  hasten 
his  death.  Other  witnesses  testified  that  deceased  had  worked 
continuously  at  hard  labor  until  the  accident,  had  apparently  been 
in  good  health  at  all  times  theretofore,  and  had  never  been  able 
to  leave  his  bed  thereafter.  The  court  held  that  the  trial  court 
was  not  concluded  by  the  testimony  of  the  experts,  and  its  finding 
that  the  death  was  caused  by  the  injuries  was  sustained.30 

Where  tuberculous  infection  developed  in  a  wound  caused  by 
an  accidental  injury,  compensation  was  allowed.1'1 

Where  a  condition  of  tuberculosis,  which  had. been  dormant,  was 
aggravated  by  an  accidental  injury,  to  renewed  activity,  the  subse- 
quent illness  due  to  the  renewed  tubercular  infection  is  proximate- 
ly  caused  by  the  accident,  and  compensation  may  be  awarded  there- 
for. In  this  case  the  medical  testimony  showed  that  the  injury 
constituted  only  a  sprain  of  the  ankle,  but  that  the  accident  had 
caused  a  latent  tubercular  condition  to  spring  into  renewed  ac- 
tivity.32 

29.  Van  Keuren  v.  Dwight  Divin  &  Sons,  179  N.  Y.  App.  Div.  509,  165 
,N.  Y.  Supp.  1049,  15  N.  C.  C.  A.  644. 

30.  State  ex  rel  Jefferson  v.  District  Court  of  Rameey  Co.,  138  Minn. 
334,  164  N.  W.  1012,  15  N.  C.  C.  A-  645,  1  W.  C.  L.  J.  216. 

31.  Festa  v.  Burns  Co.,  (1916)  9  N.  Y.  St.  Dep,  Rep,  277. 

32.  Maurmann  v.    Chirhart  &  Nystedt,   1  Cal.  I.  A.  C.   D.  1914,  499.  10 
484 


PERSONAL    IN.II'KY   OH    I>i:\TII    BY  ACCIDF.NT.  §    2")4 

Where  an  employee  suffered  an  injury  to  his  wrist  and  the  re- 
covery was  impeded  by  a  tubercular  condition  of  the  wrist,  on  the 
question  whether  the  employer  was  liable  for  the  prolonged  dis- 
ability or  only  for  the  length  of  time  which  an  ordinarily  healthy 
person  would  be  incapacitated,  the  commission  held  that:  "An 
employer  must  take  his  employees  as  he  finds  them.  An  exception 
is  made,  however,  where  the  duration  of  a  disability  is  unduly 
prolonged  by  syphilis,  chronic  varicose  ulcers,  or  tuberculosis,  ajid 
in  surli  cases  compensation  will  be  awarded  only  for  the  longest 
period  of  disability  for  which  a  normal  person  sustaining  the 
same  accidental  injury  would  reasonably  be  disabled.  This  ex- 
ception controls  the  present  case  where  applicant  was  suffering 
from  a  tubercular  condition."33 

Where  deceased  sustained  injuries  as  a  result  of  being  thrown 
from  the  van  which  he  was  driving,  when  his  horse  ran  away,  and 
6  months  later  died  from  tuberculosis,  it  was  held  that  the  finding 
that  death  was  due  to  the  injuries  received  was  sustained  by  the 
evidence.34 

Tuberculosis  is  not.  recognized  as  an  occupational  disease,  and 
will  not  be  considered  as  an  industrial  injury  unless  there  is 
proof  that  the  tubercular  condition  was  caused  by  an  injury/5 

Kvidence  that  an  employee  received  a  slight  blow  on  the  jaw, 
is  not  sufficient  to  sustain  an  award  for  incapacity  resulting  from" 
tuberculosis  of  the  cervical  glands,  alleged  to  have  been  brought 
on  by  the  injury.36 

Where  the  evidence  showed  that  the  tuberculosis  of  the  left 
knee  developed  as  the  result  of  an  injury,  it  has  been  held  that 
a  previous  tubercular  tendency  would  in  no  way  affect  a  right 
to  compensation.37 

N.  C.  C.  A.  768;   Birk  v.  Matson  Nav.    Co..    2    C&\.    I     A.  C.  D.    (1915), 
177,  10  N.  C.  C.  A.  769. 

33.  Van  Dalsem  v.  Dl  Fiore,  1  Cal.  I.  A.  C.  D.  (1914)  229,  10  N.  C.  C. 
A.  769.       . 

34.  Beare  v.  Garrod,  8  B.  W.  C.  C.  474,  10  N.  C.  C.  A.  756. 
.1.1.     Coates  v.  City  of  Elsinore  (1916)   3  Cal.  I.  A.  C.  269. 

36.  In  Re  Claim  of  T.  F.  Luttrell  (1909)  No.  852.  Op.  Sol.  Dep.  C.  ft  L. 
1915,  219.  Leary  v.  Traveler's  Ins.  Co.,  2  Mass.  I.  A.  Bd.  184. 

37.  Wabash  R.  R.  Co.  v.  Industrial  Comm.,  286,  111.  194,  197.  121  N.  E. 
569. 

485 


§  255  WORKMEN'S  COMPENSATION  LAWS. 

A  tender  on  a  paper  machine  sustained  injuries  when  his  hand 
was  caught  between  the  rolls  of  the  machine.  As  a  result  of  the 
injuries,  many  operations  were  necessary,  thereby  reducing  his 
vitality  and  accelerating  a  condition  of  tuberculosis  more  or  less 
lingering,  which  caused  his  death.  Compensation  was  allowed.38 

.  §  255.  Tumor. — A  sales  lady  claimed  that  while  she  was 
takjng  down  a  heavy  coat,  hanging  on  a  rod  somewhat  higher  than 
she  could  conveniently  reach,  she  felt  a  sudden  pain  in  her  right 
side  and  groin,  and  claimed  compensation  for  disability  alleged 
to  have  resulted  from  the  injury.  Medical  testimony  showed  that 
the  applicant  was  suffering  from  a  fibroid  tumor  of  the  uterus, 
that  such  tumor  was  in  existence  at  the  time  of  the  accident,  and 
the  disability  suffered  was  due  to  the  existence  of  the  tumor  and 
not  to  the  accident.  Compensation  was  denied.39 

A  workman  met  with  a  severe  accident  when  a  heavy  strut  fell 
on  his  back  near  the  region  of  his  kidneys.  Later  it  was  discovered 
that  he  was  suffering  from  a  tumor,  and  in  an  operation  to  remove 
the  tumor  the  workman  died.  Compensation  was  allowed.40 

A  carpenter,  at  work  on  his  knees,  strained  his  knee  upon  rising, 
resulting  in  prolonged  disability.  An  operation  revealed  fibro- 
lipoma  or  fatty  tnmor_  under  the  knee  cap.  which  existed  prior  to 
the  accident,  but  not  causing  any  disability.  It  was  held  that 
the  disability  resulting  from  an  aggravation  of  the  diseased  condi- 
tion was  compensable.41 

Compensation  was  allowed  for  disability  resulting  from  the 
aggravation  of  the  condition  of  a  tumor  existing  prior  to  the  acci- 
dental injury.42 

38.  Friday  v.  Galusha  Stove  Co.,  181  N.  Y.  App.  Div.  961,  168  N.  Y.  S. 
1109;  Champine  v.  De  Grasse  Paper  Co.,  181  N.  Y.  App.  Div.  909,  167  N. 
Y.  S.  1092;  Callow  v.  Otis  Elevator  Co.,— N.  Y.  App.  Div.—,  Death  case  No. 
7376,  Oct.  4,  1917. 

39.  Cook  v.    Employer's  Liab.    Assur.  Corp.    Ltd.,  1    Cal.  I.  A.   C.  D. 
(1914)  420,  10  N.  C.  C.  A.  773. 

40.  Lewis  v.  Port  of  London  Authority,  (1914),  W.  C.  &  Ins.  Rep.  299, 
6  N.  C.  C.  A.  625. 

41.  Globe  Indemnity  Co.  v.  Terry,  2  Cal.  I.  A.  C.  D.  682. 

42.  Big  Muddy  Coal  and  Iron  Co.  v.  Industrial  Bd.,  279  111.  235,  116 
N.  E.  662. 

486 


PERSONAL  INJURY  OR  DEATH  BY  .UVIDKNT.        §  254 

Compensation  was  denied  for  the  death  of  a  workman  alleged 
to  have  been  caused  by  an  injury  sustained  when  a  fellow  em- 
ployee dropped  a  hammer,  which  struck  the  deceased,  causing 
a  tumor  on  the  brain.  The  commission  held  that  the  evidence 
failed  to  sustain  the  allegations  of  claimant43 

§  256.  Typhoid  Fever. — Action  was  brought  to  recover  dam- 
ages for  the  death  of  an  employee,  caused  by  typhoid  fever  alleged 
to  have  resulted  from  contaminated  drinking  water  furnished  by 
!lif  employer.  In  overruling  the  defendant's  demurrer,  which 
stated  that  the  death  was  caused  by  such  an  injury  as  was  within 
the  workman's  compensation  act,  and  that  the  plaintiff  must  seek 
redress  under  that  act,  the  court  held  that  the  words  <; injured  or 
killed"  as  used  in  the  act  contemplated  injury  or  killing  through 
outside  violence  accidentally  applied,  and  not  death  from  disease 
such  as  the  one  under  contemplation  here.44 

An  employee  fell  from  a  wagon,  striking  his  head  on  a  car  rail, 
and  sustaining  injuries  which  incapacitated  him  from  work.  A 
week  later  he  died.  In  awarding  compensation  the  commission 
found,  "at  the  time  of  his  accident,  Harry  Banks  was  suffering 
from  typhoid  fever  in  the  incubation  stage,  whieh  became  aggra- 
\ated  by  the  severe  injury  to  his  head  through  the  consequent 
lowering  of  his  resisting  power,  and  the  said  disease  thus  aggra- 
vated caused  his  death."  The  court  of  appeals  affirmed  a  judg- 
nn nt  of  the  appellate  division  affirming  the  award.46 

Where  an  employee  sought  compensation  for  temporary  disabili- 
ty caused  by  typhoid  fever,  alleged  to  have  resulted  from  germs 
invested  by  drinking  infected  water  furnished  by  the  employer,  the 
court  said :  ' '  Our  statute,  so  far  as  here  important,  provides  for 
compensation  'in  every  case  of  personal  injury  *  *  *  caused 
by  accident,  arising  out  of  and  in  the  course  of  employment,'  and 
then  provides  that  the  word  'accident,'  as  used  therein  shall  'be 
construed  to  mean  an  unexpected  or  unforeseen  event,  happening 

43.  Siegel  v.  Belknap  Mfg.  Co.,  2  Conn.  C.  D.  402. 

44.  Robbins  v.  Victor  Rubber  Co.,  21  Ohio  N.  P.  (N.  8.)  17,  17  N.  C. 
C.  A.  785,  Contra,  Aetna  Life  Ins.  Co.  v.  Portland  Gas   &  Coke  Co.,  229 
Fed.  552.  144  C.  C.  A.  12,  L.  R.  A.  19166D,  1027. 

46.  Banks  v.  Adams  Exp.  Co..  221  N.  Y.  606,  117  N.  E.  1060,  15  N.  C.  C. 
A.  638. 

487 


§  256    .  WORKMEN'S  COMPENSATION  LAAV 

suddenly  and  violently,  with  or  without  human  fault  and  produc- 
ing at  the  time,  injury  to  the  physical  structure  of  the  body.'  ' 
G-.  S.  1913,  Sections  8203,  8230 

"The  evidence  shows  that  typhoid  fever  is  a  germ  disease;  that 
it  is  produced  by  taking  typhoid  bacilli  into  the  alimentary  canal ; 
that  no  deleterious  effects  result  until  the  bacilli  taken  into  this 
canal  have  multiplied  enormously;  and  that  it  requires  more  than 
a  week  after  the  infection  for  the  disease  to  develop  sufficiently 
for  its  symptoms  to  be  discernible.  The  disease  does  not  result 
from  an  event  which  happens  'suddenly  and  violently,'  nor  from 
an  event  which  produces  'injury  to  the  physical  structure  of  the 
body'  at  the  time  it  happens."40 

Where  it  was  shown  that  an  employee's  death  resulted  from 
typhoid  fever  contracted  from  drinking  impure  water  furnished 
by  the  employer  for  the  use  of  the  employees,  the  court,  in  holding 
that  death  was  proximately  caused  by  accident  within  the  meaning 
of  the  workman's  compensation  act,  said:  "The  fact  that  deceased 
became  afflicted  with  typhoid  fever  while  in  defendant's  service 
would  not  in  the  sense  of  the  statute  constitute  a  charge  that  he 
sustained  an  accidental  injury,  but  the  allegations  go  further,  and 
state  that  this  typhoid  affliction  is  attributable  to  the  undesigned 
and  unexpected  occurrence  of  the  presence  of  bacteria  in  the 
drinking  water  furnished  him  by  the  defendant,  as  an  incident  to 
his  employment.  These  facts  and  circumstances  clearly  charge  that 
Vennen's  sickness  was  the  result  of  an  unintended  and  unexpected 
mishap  incident  to  his  employment.  These  allegations  fulfill  re- 
quirements of  the  statute"  that  the  drinking  of  the  polluted  water 
by  the  deceased  was  an  accidental  occurrence,  while  he  was  'per- 
forming service  growing  out  of  and  incidental  to  his  employment.' 
It  is  alleged  that  the  consequences  of  this  alleged  accident  resulted 
in  afflicting  Vennen  with  typhoid  disease,  which  caused  his  death. 
Diseases  caused  by  accident  to  employees  while  'performing  serv- 
ices growing  out  of  and  incidental  to  his  employment'  are  injuries 
within  the  contemplation  of  the  Workmen's  Compensation  Act. 

46.  State  ex  rel.  Faribault  Woolen  Mills  Co.  et  al.  v.  District  Court  of 
Rice  County  et  al.,  138  Minn.  213,  164  N.  W.  810,  15  N.  C.  C.  A.  520, 
1  W.  C.  L.  J.  89. 

488 


PERSONA!    INJURY  OR  DEATH  BY  ACCIDENT.  §   256 

This  was  recognized  in  the  case  of  Ileileman  Brewing  Co.  v.  In- 
dustrial Commission,  152  N.  W.  446,  and  Voetz  v.  Industrial  Com- 
mission, 152  N.  W.  830.  The  English  Compensation  Act  made  em- 
ployers liable  to  employees  for  'personal  injury  by  accident  arising 
out  of  and  in  the  course  of  the  employment.'  Under  this  act  it 
has  been  held  that  contraction  of  a  disease  may  be  caused  by  acci- 
dent."47 

Where  a  workman  had  been  engaged  for  several  years  in  remov- 
ing sewage,  there  was  no  evidence  to  sustain  a  finding  that  his 
death  was  due  to  an  accident,  merely  because  he  contracted  ty- 
phoid fever  which  caused  his  death.48 

Where  an  employee  underwent  an  operation  for  a  hernia  and 
a  few  days  later  was  found  to  be  suffering  from  typhoid  fever, 
such  typhoid  fever  will  not  be  presumed  to  have  resulted  from  the 
hernia  or  operation,  and  compensation  will  not  be  allowed  for  the 
prolonged  disability.49 

Decedent's  leg  was  broken  both  above  and  below  the  knee  by 
an  accident  arising  in  the  course  of  his  employment,  and  some  time 
nearly  a  year  later  he  contracted  typhoid  fever  from  which  he 
died.  The  Board,  holding  that  the  connection  between  the  dece- 
dent's condition  as  the  result  of  his  accident  and  his  attack  of 
typhoid  fever  was  too  remote,  said:  "Where  alternative  theories 
are  developed  by  the  evidence,  one  of  which  will  fix  liability  upon 
the  defendant,  while  the  other  will  not,  speculation  is  not  per- 
mitted in  order  to  afford  a  basis  for  a  recovery."50 

§  257.  Ulcers. — An  employee  suffered  an  injury  as  a  result  of 
a  flying  piece  of  steel  striking  his  eye.  He  sought  compensation 
for  prolonged  disability  due  to  trachomatic  ulcers.  In  denying 

47.  Vennen  v.  New  Dells  Lbr.  Co.,  161  Wis.  371,  154  N.  W.  640,  10  N.  C. 
C.  A.  729,  L.  R.  A.  1916  A,  283.     Federal  Rubber  Mfg.  Co.  v.  Havollc,  162 
Wis.  341.  156  N.  W.  143;  In  re  Win.  Rawles,  3rd  A.  R.  U.  S.  C.  C.  147. 

48.  Finlay  v.  Tullamore  Guardians,  (1914),  7  B.  W.  C.  C.  973,  C.  A.  In 
re  John  J.  Milstead.  ?rd  A.  R.  U.  S.  C.  C.  161. 

49.  Viglione  v.  Montgomery  Garage  Co.,  2  Cal.  I.  A.  C.  D.  87,;     John- 
son v.  Casualty  Co.  of  America,  2  Mass.  Wkm.  C.  C.  170. 

60.  Tennessee  Blankenship  v.  Majestic  Coal  Co.,  claim  No.  282,  Work- 
man's C.  Bd.  of  Ky.  Bui.  for  Nov.  1st,  1917  to  Jan.  22.  1919,  pg.  153. 

489 


§  257  WORKMEN'S  COMPENSATION  LAWS. 

compensation,  it  was  said: /'Trachoma  is  recognized  as  a  disease 
by  the  medical  profession  and  it  is  said  not  to  be  brought  about 
by  an  injury  to  the  eye  or  by  foreign  particles  getting  into  the 
eye."51 

"Where  foreign  substances  entered  the  eye  of  an  employee  dur- 
ing and  in  the  course  of  his  employment,  which  caused  irritation 
and  ulceration  resulting  in  loss  of  the  eye,  the  loss  was  due  to  the 
accident.52 

Where  ulcers  were  caused  by  scratches  and  abrasions  being  the 
proximate  cause,  compensation  was  awarded  for  the  disability, 
caused  by  the  ulcers.53 

A  healthy  workman  received  a  blow  upon  the  stomach,  causing 
severe  pains  and  continuous  disability,  the  blow  having  been  ss- 
vere  enough  to  cause  internal  injuries,  and  two  months  later  he  was 
found  to  be  suffering  from  a  duodenal  ulcer.  No  evidence  was 
produced  sufficient  to  show  that  the  ulcer  existed  at  the  time  of 
the  injury,  or,  if  it  did  exist,  to  having  been  active ;  but  that  if  there 
did  exist  such  a  dormant  ulcer  the  blow  was  sufficient  to  aggra- 
vate its  condition.  The  accident  was  held  to  be  the  cause  of  the 
disability.54 

Compensation  was  refused  for  the  death  of  an  employee  wh^re 
it  was  alleged 'that  the  death  was  caused  by  ulcers  of  the  stomach 
resulting  from  an  injury  to  the  hand.  It  was  held  that  there  was 
no  causal  connection  shown  to  exist  between  the  injury  and  ihe 
cause  of  the  death.55 

An  employee  received  a  blow  upon  the  stomach,  followed  by  dis- 
ability. Medical  testimony  and  examination  showed  that  the  ill- 
ness was  due  to  ulceration  of  the  stomach,  and  that  prior  to  the 
accident  the  employee  had  been  treated  for  gastritis.  It  was  held 
that  the  disability  was  due  to  natural  causes.56 

51.  In  re  LeWare,  Ohio  I.  C.  Aug.  21,  1914,  6  N.  C.  C.  A.  897. 

52.  Grant  v.  Narlion,  1  Cal.  I.  A.  C.  482. 

53.  McMullen  v.  Standard  Oil  Co.,  1  Cal.  I.  A.  C.  (Part  2),  169. 

54      Snyder  v.  Pacific  Tent  and  Awning    Co.,  3    Cal.    I.    A.    C.   D.    1. 

55.  Twoomey  v.  Royal  Indemnity  Co.,  2  Mass.  I.  A.  Bd.  540. 

56.  McLean  v.  Brooks,  2  Cal.  I.  A.  C.  D.  288.  • 


490 


PERSONAL  INJURY  OR  DEATH  BY  ACCIDENT.  §   257 

In  the  absence  of  sufficient  evidence  to  show  that  there  was  an 
injury  of  sufficient  magnitude  to  cause  intestinal  ulcers,  compen- 
sation was  denied  for  the  disability,  alleged  to  have  been  caused 
by  the  ulcers.87 

"Where  an  employee  suffers  a  bruise  as  the  result  of  an  injury 
and  an  ulcer  subsequently  develops  therefrom,  the  employee  has 
sustained  a  compensable  injury.58 

Where  an»  employee  is  suffering  from  an  acute  gastric  ulcer, 
which,  according  to  medical  testimony,  will  puncture  the  walls  of 
the  stomach,  and  did  puncture  the  walls  of  the  stomach  immedi- 
ately after  the  exertion  of  cranking  his  employer's  automobile, 
such  injury  was  not  caused  by  the  exertion.  The  exertion  was 
the  occasion  but  not  the  cause  of  the  puncture,  and  therefore  is 
not  compensable.59 

§  258.  Vaccination. — Claimant  was  compelled  to  submit  to 
vaccination,  which  was  requested  by  the  board  of  health.  Pol- 
lowing  the  vaccination  claimant  was  found  to  be  suffering  from 
"Acute  Mastoiditis,  lymphatic  infection."  An  operation  was 
performed  which  incapacitated  claimant  for  a  considerable  tinis. 
Reversing  the  award,  the  court  held  that  even  assuming  that  the 
acute  mastoiditis  was  caused  by  the  invasion  of  the  germs  through 
the  vaccination  wound,  there  was  a  lack  of  evidence  tending  to 
show  that  the  germs  secured  lodgment  in  claimant's  arm  in  the 
course  of  her  employment.  The  court  said :  It  seems  quite  clear 
to  us  that  claimant  has  failed  to  show  any  connection  between  her 
employment  in  the  store  of  respondent  and  the  infection  following 
vaccination.  There  was  nothing  in  her  employment  which  made 
her  more  susceptible  to  the  reception  of  the  germ  than  if  she  \\  is 
walking  upon  the  street  or  attending  a  theater  or  church.  In 
other  words  the  risk  of  infection  was  such  and  such  only  as  that 
to  which  the  general  public  is  exposed.  Claimant's  injury,  if  it 
can  be  traced  to  the  vaccination,  arose  not  out  of  her  employment 
with  the  respondent,  hut  through  the  active  agency  of  the  Detroit 

57.  Hyland  v.  Winant,  Inc.,  6  N.  Y.  St  Dep.  Rep.  304. 

58.  Hoffman  v.  Korn.  2  Cal.  I.  A.  C.  D.  166. 

59.  Chenowith  v.  Mitchell,  2  Cal.  I.  A.  C.  D.  75. 

491 


§259  WORKMEN'S  COMPENSATION  LAW 

Board  of  Health,  which  for  the  benefit  of  the  general  public  re- 
quested her  to  submit  to  the  operation."60 

An  employee  submitted  to  vaccination  against  his  will  at  the 
order  of  his  superior.  Later  death  resulted  from  septicaemia  and 
the  question  was  whether  the  infection  of  a  vaccination  on  the  arm 
would  result  in  an  abscess  of  the  knee  which  would  cause  death. 
Upon  a  conflict  of  testimony,  it  was  held  not  to  be  due  to  the  vac- 
cination.61 

Under  the  Federal  act  an  employee  submitting  to  a  vaccina- 
tion, ordinarily  harmless,  at  the  direction  of  a  superior  officer,  and 
sustaining  injuries  thereby,  is  entitled  to  compensation.62 

"Where  an  employee  submitted  to  a  vaccination  in  obeying  the 
orders  of  the  Board  of  Health,  and  infection  followed,  incapaci- 
tating the  employee,  it  was  held  to  be  a  personal  injury.63 

§  259.  Varicose  Veins. — Applicant  claimed  to  have  suffered  a 
strain  while  lifting,  which  resulted  in  varicocele,  necessitating  an 
operation.  In  denying  compensation,  the  Commission  said :  ' '  The 
statute  requires  that  the  applicant  establish  to  a  moral  certainty 
the  fact  of  accident  and  that  the  injury  was  proximately  caused  by 
such  accident.  The  applicant  was  unable  to  do  this.  Medical  and 
surgical  opinion  is  that  varicocele  is  almost  never  the  result  of 
an  injury,  but  is  a  gradual  development,  as  in  the  case  of  varicose 
veins  in  general.  Therefore,  this  application  for  compensation 
must  be  denied."64 

A  teamster  was  kicked  by  a  horse  and  was  incapacitated  by  a 
varicocele,  alleged  to  have  been  caused  by  the  blow  on  the  groin 
when  he  received  the  kick.  In  allowing  compensation,  the  commis- 

60.  Krout  v.  J.  L.  Hudson  Co.,  200  Mich.  287,  166  N.  W.  848,  16  N.  C. 
C.  A.  881,  1  W.   C.  L.  J.  1048. 

61.  In  Re  Miller,  Ohio  Ind.  Comm.  No.  78,  789,  Aug.  16,  1915,  11  N.  C. 
C.  A.  506. 

62.  Re  C.  B.  Flora,  Op.  Sol.  Dep.  C.  &  L.  pg.  188;    Re  Joseph  D.  Haley, 
Op.  Sol.  Dep.  L.  p  255. 

63.  Fevore  v.  Employers  Liab.  Assur.  Corp.,  2  Mass.  I.  A.  Bd.  332. 

64.  Holden  v.  Maryland  Gas.  Co.,  1  Cal.  I.  A.  C.  D.  (No.  1,  1914)  11,  4 
N.  C.  C.  A.  859;    In  re  Emil  Beyer,  2nd  A.  R.  U.  S.  C.  C.  139;     In  re 
Jam«s  F.   O'Donnell,  2nd  A.  R.  U.  S.  C.  C.  139. 

492 


PERSONAL  INJURY  OR  DEATH   BY  ACCIDENT."  §    2.">! ' 

sion  said:  ''The  issue  is  not  easy  of  determination.  Ordinarily 
varicocele  comes  through  gradual  development  and  afflicts  men 
who  have  to  stand  much  upon  their  feet,  but  it  is  conceded  by 
competent  medical  authorities  that  it  may  result  from  an  acci- 
dent."" 

Where  a  foundry  helper  suffered  from  a  burn,  due  to  the  spat- 
tering of  hot  iron,  and  later  received  a  second  burn,  which  aggra- 
vated a  pre-existing  varicose  condition,  necessitating  an  operation, 
compensation  was  allowed.69 

An  employee  sustained  an  inguinal  hernia  and  was  operated 
upon.  Shortly  afterward  a  lump  was  apparent  upon  his  groin.  A 
second  operation  showed  that  the  lump  was  due  to  a  varicocele, 
aggravated  but  not  caused  by  the  hernia.  It  was  held  that  the  em- 
ployee was  not  entitled  to  compensation  for  continued  disability 
due  to  the  varicocele.67 

Since  the  employer  takes  the  employee  as  he  finds  him,  it  was 
held  that  where  an  employee  50  years  of  age,  weighing  over  two 
hundred  pounds,  whose  physical  condition  was  so  poorly  that  a 
slight  injury  would  result  in  extended  disability,  and  who  was 
injured  when  a  wheelbarrow  fell  upon  him,  resulting  in  varicose 
veins  and  other  diseases,  that  all  of  the  disability  was  compen- 
sable.68 

Where  an  employee  sustains  an  accidental  injury,  which  is 
aggravated  by  a  pre-existing  varicose  condition,  prolonging  the 
disability,  compensation  will  be  allowed  for  the  length  of  time  the 
employee  would  have  been  disabled  were  it  not  for  the  pre-existing 
diseased  condition.69 

An  employee  who  was  moving  barrels  in  some  way  got  between 
two  barrels  and  jammed  his  scrotum,  which  he  claims  brought  on 
a  varicocele  six  months  later.  It  was  held  upon  expert  testimony 

65.  Mitchell  v.  McNab  A  Smith.  1  Cal.  I.  A.  C.  D.  (No.  7,  1914)   14,  6 
N.  C.  C.   A.   399. 

66.  Mustaikas  v.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases 
547. 

67.  Jorgensen  v.  Healy-Tibbits  Const.  Co.,  2  Cal.  I.  A.  C.  D.  46. 

68.  Rounda  &  Spivock  v.  Heenan  3  Cal.  J.  A.  C.  D.  36. 

69.  Fisher  T.  Union  Ice  Co..  2  Cal.  I.  A.  C.  93. 

493 


§  261  WORKMEN'S  COMPENSATION  LAWS. 

that  traumatism,  like  that  suffered  by  the  claimant,  will  not 
cause  a  varicocele  six  months  after  the  accident.  Compensation 
was  denied.70 

§  260.  Vertigo. — Where  an  employee  received  an  accidental 
injury,  and  vertigo  followed,  but  medical  testimony  indicated  no 
fracture  of  the  skull  or  concussion  of  the  brain,  and  that  the  verti- 
go was  due  to  arterio  sclerosis,  compensation  was  denied,  because" 
the  disability  was  not  caused  by  an  accident.71 

§  261.  Wood  Alcohol  Poisoning. — A  show  card  writer,  who 
used  wood  alcohol  for  the  purpose  of  dissolving  certain  dyes  for 
use  in  his  work,  suffered  the  loss  of  his  eyesight.  Just  prior  to 
the  accident  he  used  an  extraordinary  quantity  in  cleaning  the 
apparatus  and  his  hands.  This  was  held  to  be  an  accidental  in- 
jury.72 

A  family  servant  used  wood  alcohol  in  starting  a  fire,  and  was 
burned  to  death  as  a  result  thereof.  This  was  held  to  be  an  acci- 
dent arising  out  of  the  employment.73 

A  sign  painter  who  used  wood  alcohol  in  his  preparation  of 
dyes,  suffered  from  a  total  loss  of  eyesight  after  using  an  extraor- 
dinary amount.  In  distinguishing  this  injury  from  an  occupa- 
tional disease,  and  allowing  compensation  therefor,  the  commission 
said:  "The  loss  of  the  vision  by  poisoning  by  wood  alcohol  is  not 
among  the  number  of  diseases  standardized  and  commonly  classi- 
fied as-  occupational  disease,  and  we  think  that  without  doing 
violence  to  the  statute,  we  may  reasonably  regard  the  sudden  de- 
struction of  the  vision  by  the  use  of  wood  alcohol  as  an  accident. 
*  *  *  We  recognize  that  the  issue  is  one  of  extreme  difficulty, 
and  that  two  opinions  may  reasonably  be  entertained  as  to  the 

70.  Keen  v.  Burns,  2  Conn.  C.  D.  170. 

71.  Carter  v.  Llewellyn  Iron  Works,  2  Gal.   I.  A.  C.   855.     See  Falls 
from  vertigo  or  other  like  causes. 

72.  Fidelity  &  Casualty  Co.  of  New  York  et  al.  v.  Industrial  Accident 
Com.  of  Cal.  et  al.,  177  Cal.  472,  171  Pac.  429,  17  N.  C.  C   A.  784,  1  W  C. 
L.  J.  903. 

73.  Kolaszynski  v.  Klie,  91  N.  J.  L.  37,  102  Atl.  5,  15  N.  C.  C.  A.  160. 

494 


<>\  \i    iN.n-KY  OK  DKATII  i-.y  ACCIDENT.  §  261 


correctness  of  our  decision,  but  we  believe  that  the  weight  of 
authority,  of  justice  and  of  sound  reason  is  on  the  side  of  awarding 
compensation  in  this  case."74 

74.    Dewitt  v.  Jacoby  Bros.,  1  Cal.  I.  A.  C.  D.  (1914),  170,  6  N.  C.  C. 
A.  488. 


108 


CHAPTER  VI. 

ACCIDENT  ARISING  OUT  OP  AND  IN  THE  COURSE  OF  THE  EMPLOYMENT. 

Sec. 

262.  Arising  Out  Of  And  In  The  Course  Of  In  General. 

ACCIDENTS  SUSTAINED  i*r  GOING  TO  AND  FROM  PLACE  OF  EMPLOYMENT. 

263.  Going  To  Work  In  Own  Conveyance. 

264.  Going  From  Work  In  Own  Conveyance. 

265.  Going  To  And  From  Work  In  Conveyances  Furnished  By  Employer. 

266.  While  Walking  To  And  From  Work. 

267.  Going  To  And  From  Work  Using  Conveyances  Of  Third  Parties. 

268.  Going  To  And  From  Work,  On  Premises  Of  Employer  And  While 

Passing  Over  Ways   Of  Egress   And   Ingress. 

269.  Going  To  And  From  Work  Where  Employment  Is  Not  Limited  To 

Fixed  Hours. 

270.  Seamen  And  Others  Employed  On  Vessels  Injured  When  Getting 

On  And  Off  Vessels. 

271.  Away  From  Place  Of  Employment  On  Business  Of  Employer. 

272.  Street  Accidents. 

NOX-WORKIXG  TIME  INJURIES. 

273.  Miscellaneous  Accidents  Before  And  After  Work  Hours. 

274.  During   Temporary     Cessation     Of   Work     At   The     Direction   Of 

Employer  And  For  Own  Purposes. 

275.  Going  To  Report  To  Employer. 

276.  Lunch  Hour  Injuries,  On  The  Premises  And  Going  To  Place  Off 

Premises  For  Luncheon. 

277.  Going  To  Receive  Pay. 

278.  Going  To  Answer  A  Call  Of  Nature. 

279.  Injuries    Sustained   After    Work   Hours,   By   Employees   Furnished 

Lodgings  On  The  Premises  And  To  Employee  Visiting  The 
Premises  On  Sundays  For  Purposes  Not  Connected  With  The 
Employment. 

280.  Away  From  Place  Of  Employment  On  Own  Business  Or  Business 

Other  Than  Employer's 

281.  Accidents   Under   Contract   But   Before    Beginning     Work,   Before 

Actual  Hiring,  And  After  Discharge. 
496 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT. 

CHAPTER  VI.  (CONT'D) 

EMPLOYEES  OR  ANOTHER'S  WILFUL  MISCONDUCT. 

Sec. 

282.  In   General. 

283.  Acts  Not  Constituting  Wilful   Misconduct. 

284.  Acts  Constituting  Wilful  Misconduct. 

285.  Sportive  Acts. 

286.  Added  Risk  To  Peril. 

287.  Employer's  Wilful   Misconduct. 

288.  Injury   Sustained   While     Performing     Acts     For     Personal    Con- 

veniences or  Pleasure  Of  The  Employee. 

289.  Miscellaneous    Accidents    Occurring    Within    "War    Zone"    And    In 

Munition  Works  Together  With  Questions  Pertaining  To  Em- 
ployees In  Military  Service,  As  Affected  By  Compensation  Acts. 

"AGGRAVATION"  CASES  AS  AFFECTED  BY  THE  DOCTRINE  OF  PROXIMATE  CAUSE. 

290.  Aggravation   Of   Pre-Existing   Condition. 

291.  Aggravation  Of  An  Injury  By  Subsequently  Intervening  Causes. 

292.  Accidents    Occurring    To    Employees    While    Performing    Acts    For 

The  Master  Other  Than  Those  Within  Their  Particular  Line  Of 
Duty  or  Whose  Conduct  While  Performing  Their  Duties  To  The 
Master  Places  Them  Outside  Of  The  Scope  Of  Their  Employ- 
ment. 

ASSAULTS. 

293.  Resulting  From   Controversies   Connected  With  Or  Pertaining  To 

Employment. 
294!    Resulting  From  Controversies  Not  Connected  With  Or  Pertaining 

To  Employment. 
295.     Burden  Of  Proof  To  Show  That  The   Injury  Was  Caused  By  An 

Accident  And  That  The  Accident  Arose  Out  Of  And  In  The 

Course  Of  The  Employment. 

RULINGS  AKFKCTING  SPECIFIC  CASES  AS  ARISING  Our  OF  AND  IN  THE  COURSE 
OF  THE  EMPLOYMENT. 


296.  Acting  Under  Unauthorized  Orders. 

297.  Acids. 

298.  Act  Of  God. 

299.  Anesthetic  Causing  Death  During  Surgical  Operation. 

300.  Anthrax. 

301.  Appendicitis. 

497 
W.  a— 32 


WORKMEN'S  COMPENSATION  LAW 

CHAPTER  VI.  (CONT'D) 
Sec. 

302.  Apoplexy. 

303.  Apprentice. 

304.  Asphyxiation. 

305.  Assisting  A  Fellow  Employee;  Employee  Of  Another  Employer  Or  A 

Stranger. 

306.  Bite  Of  Animals. 

307.  Bites  And  Stings  From  Insects  And  Reptiles. 

308.  Bone  Felon. 

309.  Brights  Disease. 

310.  Burns. 

311.  Cancer. 

312.  Carbuncle. 

313.  Charity  Worker  And  Persons  Seeking  Relief  From  Charity  Injured. 

314.  Chauffeur. 

315.  Concussion  Of  Brain. 

316.  Contagious  Skin  Disease. 

317.  Delirium  Tremens.    ' 

318.  Dislocations. 

319.  Drivers  Injured. 

320.  Drowning. 

321.  Electrical  Shock  And  Electrocution. 

322.  Emergency.  \ 

323.  Erysipelas. 

324.  Explosions. 

325.  Exposure. 

326.  Eye  Injuries. 

1 327.  Falls  From  Vertigo  Or  Other  Like  Causes. 

328.  Falling  Objects. 

329.  Frost  Bites  And  Freezing. 

330.  Gangrene  Resulting  From  Injury. 

331.  Glanders. 

332.  Heart  Disease. 

333.  Heat  Stroke  And  Sun  Stroke. 

334.  Hemorrhage. 

335.  Hernia. 

336.  Independent  Contractor  Doing  Extra  Work. 

337.  Infection  From  Various  Causes. 

338.  Influenza. 

339.  Insanity. 

340.  Intoxication. 

341.  Ivy  Poisoning. 

342.  Landslide  And  Snowslides. 

343.  Lightning. 

344.  Mental  Shock. 
498 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   262 

Sec. 

345.  Misunderstood  Orders. 

346.  Neurosis. 

347.  Paralysis. 

348.  Pneumonia. 

349.  Ruptures. 

350.  School  Teacher  Injured  Or  Killed. 

351.  Self  Inflicted  Injuries. 

352.  Suicide. 

353.  Testing  Racing  Motorcycle. 

354.  Tetanus. 

355.  Toxic  Amblyopla. 

356.  Tuberculosis. 

357.  Typhoid  Fever. 

358.  Ulcers. 

359.  Unintentional  Injury  By  a  Fellow  Employee. 

360.  Using  Elevator  Contrary  To  Instructions. 

361.  Using  Machinery  Other  Than  That  Employed  To  Use. 

362.  Volunteers. 
363:  Watchman. 

364.     Window  Cleaner  Falling  From  Ledge. 

§  262.  "Arising  Out  Of"  and  "In  The  Course  Of  In  Gen- 
eral.— Compensation  for  disability  is  conditioned  in  most  of  the 
American  Workmen's  Compensation  Acts  and  in  the  English 
Act  upon  the  disability  being  due  to  ah  accidental  injury  which 
arose  "out  of"  and  "in  the  course  of  employment."  1 

North  Dakota,  Ohio,  Pennsylvania,  Texas,2  Utah,3  West  Vir- 
ginia, and  the  Federal  Act,  use  the  phrase  "in  the  course  of 
employment;"  Wyoming,  "injured  in  hazardous  employment;" 
and  Wisconsin,  "growing  out  of  and  incidental  to  the  employ- 
ment."4 

1.  Missouri,   Illinois,   Iowa,   Kansas,   Kentucky,   Oklahoma,   Nebraska, 
Tennessee,  etc.,  City  of  Chicago  v.  Industrial  Comm.  —111.—,  (1920),  127 
N.  E.  49,  6  W.  C.  L.  J.  17;     Brown  v.  Bristol  Last  Block  Co.,  — Vt— , 
(1920),  108  Atl.  922,  5  W.  C.  L.  J.  628;  Fassig  v.  State  ex  rel.  Turner— Ohio 
116   N.  E.  104.  B.  1  W.  C.  L.  J.  1458;    Stasmos  v.  State  Indus.  Comm., 
— Okla.— ,  (1921),  195  Pac.  762. 

2.  Lumberman's  Reciprocal  Ass'n.  v.  Behnken,  — Tex.  Civ.  App. — ,  226 
8.  W.  154,  7  W.  C.  L.  J.  363. 

3.  Twin  Peaks  Canning  Co.  v.  Indus.  Comm.,  — Utah — ,  1921,  196 
Pac.  853. 

4.  Federal  Rubber  Mfg.  Co.  v.  Havolic,  162  Wig.  341,  156  N.  W. 
143,  12  N.  C.  C.  A.  793. 

499 


§  262  WORKMEN'S  COMPENSATION  LA\V 

The  two  elements  of  this  phrase  are  discussed  in  an  Illinois 
case  in  which  the  court  said:  "The  words  'arising  out  of  and 
the  words  '  in  the  course  of  are  used  conjunctively.  In  order  to 
satisfy  the  statute,  both  conditions  must  concur.  It  is  not  suffi- 
cient that  the  accident  occur  in  the  course  of  the  employment, 
but  the  causative  danger  must  also  arise  out  of  it.  The  words 
'arising  out  of  refer  to  the  origin  or  cause  of  the  accident,  and 
are  descriptive  of  its  character,  while  the  words  'in  the  course  of 
refer  to  the  time,  place,  and  circumstances  under  which  the  ac- 
cident takes  place.  Fitzgerald  v.  Clarke  &  Sons,  1  B.  W.  C.  C. 
197;  Dietzen  Co.  v.  Industrial  Board,  279  111.  11,  116  N.  E.  684. 
By  use  of  these  words  it  was  not  the  intention  of  the  Legislature 
to  make  the  employer  an  insurer  against  all  accident  injuries 
which  might  happen  to  an  employee  while  in  the  course  of  the 
employment,  but  only  for  such  injuries  arising  from  or  growing 
out  of  the  risks  peculiar  to  the  nature  of  the  work  in  the  scope 
of  the  workman's  employment  or  incidental  to  such  employment, 
and  accidents  in  which  the  employee  is  exposed  in  a  special  de- 
gree by  reason  of  such  employment.  Risks  to  which  all  persons 
similarly  situated  are  equally  exposed  and  not  traceable  in  some 
special  degree  to  the  particular  employment  are  excluded."  5 

In  a  Minnesota  case  where  a  teacher  was  assaulted  on  her  way 
home  from  school  the  court  said;  "Without  determining  whether 
the  injuries  to  the  teacher  arose  in  the  course  of  the  employment 
it  is  held  that  they  were  not  caused  by  accident  arising  out  of 
the  employment  and  that  they  are  not  compensable  under  ths 
compensation  act,"  the  nature  of  the  employment  not  being 
such  as  to  naturally  invite  an  assault. 6 

5.  Mueller  Const.  Co.  v.  Indus.  Board,  283  111.     148,    118  N.  E.  1028, 
.1  W.  C.  L.  J.  943;     Dietzen  v.  Industrial  Board,  279  111.  11,  116  N.  E.  684; 
Hopkins  v.  Michigan  Sugar  Co.,   184  Mich.  87,  150  N.  W.  325,  L.  R.  A. 
1916A.  310;     Morris  &  Co.  v.  Indus.  Comm.,  —111..—,    (1920),  128  N.  E. 
727,  7  W.  C.  L.  J.  41;     Sparks  Milling  Co.  v.  Indus.  Comm.,  —111.—,  (1920), 
127  N.  E.  737,  6  W.  C.  L.  J.  299;     Weiss  Paper  Mill  Co.  v.  Indus.  Comm., 
—111.—,  (1920),  127  N.  E.  732,  6  W.  C.  L.  J.  307;     Kowalek  v.  N.  Y.  Con- 
sol.  Ry.  Co.,  — N.  Y.  App.  Div.— ,  128  N.  E.  888,  7  W.  C.  L.  J.  215,  Fournier's 
Case  —Me.—,  (1921),  113  Atl.  270. 

6.  State  ex  rel.  v.  District  of  Itasca  County,  140  Minn.  470,  168  N.  W. 
500 


ACCIDENT  ARISING  OUT  OB  COURSE  OP  EMPLOYMENT.        §    262 

In  speaking  on  thiii  same  subject,  the  Supreme  Court  of 
Massachusetts  said:  "An  injury  may  be  said  to  arise  out  of  the 
employment  when  there  is  apparent  to  the  rational  mind,  upon 
consideration  of  all  the  circumstances,  a  causal  connection  be- 
tween the  condition  under  which  the  work  is  required  to  be  per- 
formed and  the  resulting  injury.  Under  this  test,  if  the  injury 
can  be  seen  to  have  followed  as  a  natural  incident  of  the  work, 
and  to  have  been  contemplated  by  a  reasonable  person  familiar 
with  the  whole  situation  as  a  result  of  the  exposure  occasioned 
by  the  nature  of  the  employment,  then  it  'arises  out  of  the  em- 
ployment, but  it  excludes  an  injury  which  cannot  fairly  be  traced 
to  the  employment  as  a  contributing  proximate  cause,  and  which 
comes  from  a  hazard  to  which  the  workmen  would  have  been 
equally  exposed  apart  from  the  employment.  The  causative  dan- 
ger must  be  peculiar  to  the  work  and  not  common  to  the  neigh- 
borhood. It  muft  be  incidental  to  the  character  of  the  business 
and  not  independent  of  the  relation  of  master  and  servant.  It 
need  not  have  been  foreseen  or  expected,  but  after  the  event  it 
must  appear  to  have  had  its  origin  in  a  risk  connected  with  tha 
employment,  and  to  have  flowed  from  that  source  as  a  rational 
consequence."  7 

In  an  Iowa  case  the  court  said :  ' '  But  it  does  not  suffice  that  he 
was  injured  while  in  the  course  of  his  employment.  It  must  fur- 
tli«T  appear  that  his  injury  arore  out  of  such  employment.  The 
defendants  were  bridge  builders  who  had  charge  of  construction 
of  county  bridges  in  Story  County.  Deceased  was  employed  by 
them.  Decedent  and  others  in  such  employment  were  by  defend- 
jinls  lodged  and  boarded  on  the  ground  where  the  work  was  done. 
On  the  night  of  the  accident  the  day's  work  had  been  finished, 
but  the  employees  were  in  the  boarding  tent.  They  had  got 

555.  2  W.  C.  L.  J.  661;  State  ex  rel.  Duluth  Brewing  &  Malting  Co.  v. 
District  Court,  129  Minn.  176  151  N.  W.  912;  Bryant  v.  Fissell,  84  N.  J. 
L.  72,  86  Atl.  458. 

7.  McNicols  Case,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A.  306. 
See  Milliken's  case,  216  Mass.  293.  103  N.  E.  898,  L.  R.  A.  1916 A,  337; 
Sanderson's  In  re,  224  Mass.  558, 113  N.  E.  355.  Continental  Casualty  Co.  v. 
Indus.  Comm.,—  Cal.  App.—  (1920).  190  Pac.  849,  6  W.  C.  L.  J.  434;  Brown 
v.  Bristol  Last  Block  Co.,  — Vt.— ,  (1920),  108  Atl.  922,  5  W.  C.  L.  J.  628. 

501 


§  262  WORKMEN'S  COMPENSATION  LAW 

through  washing  the  dishes  and  were  sitting  there  until  it  was 
time  to  go  to  bed.  While  thus  engaged  the  decedent  came  to  bis 
death  from  a  stroke  of  lightning.  Concede  that  he  was  in  the 
course  of  his  employment  while  thus  in  the  tent  awaiting  his  bed 
time,  and  still  supervising  other  employees  in  getting  ready  for 
bed,  and  still  there  must  be  proof  that  the  injury  arose  out  of 
such  employment.  The  burden  is  on  the  claimant.  It  is  not  dis- 
charged by  creating  an  equipoise.  It  requires  a  preponderance. 
See  Eisentrager  v.  Railway,  160  N.  "W.  311,  L.  R.  A.  1917  B  , 
1245;  In  re  savage  Mass.  205,  110  N.  E.  283. 

' '  It  is  not  enough  for  the  applicant  to  say  '  the  accident  would 
not  have  happened  if  I  had  not  been  engaged  in  this  employment, 
or  if  I  had  not  been  in  that  particular  place.'  The  applicant 
must  go  further  and  must  say  'the  accident  arose  because  of  some- 
thing I  was  doing  in  the  course  of  my  employment,  and  because 
I  was  exposed  by  the  nature  of  my  employment  to  some  peculiar 
danger.'  In  our  opinion,  the  injury  claimed  for  did  not  ari^.e 
'out  of  decedent's  employment."8 

In  a  Kentucky  case  the  court  expressed  itself  as  follows:  "Many 
of  the  courts  in  this  country,  as  well  as  in  England,  have  exper- 
rienced  difficulty  in  determining  when  an  accident  arises  'out  of 
the  employment.  The  words  'in  the  course  of  employment  have 
reference  to  the  time,  place,  and  circumstances  while  the  words 
'arising  out  of  the  employment  relate  to  the  cause  or  source  of 
the  accident.  The  terms  'out  of  and  'in  the  course  of  are  not  sy- 
nonymous, and  if  either  of  these  elements  is  missing,  there  can 
be  no  recovery.  The  two  questions  are  to  be  determined  by  dif- 
ferent tests.  The  words  'out  of  refer  to  the  origin  or  cause  of 
the  accident,  and  the  words  'in  the  course  of  to  the  time  place, 
and  circumstances  under  which  it  occured.  So  it  has  been  said 
that  an  injury  which  occurs  while  an  employee  is  doing  what  he 
might  reasonably  do  at  the  time  and  place  is  one  which  arises 
'  out  of  and  in  the  course  of  the  employment. '  L.  R.  A.  1916  A.,  232. 

"In  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458,  it  was  held 
that  an  accident  arises  'in  the  course  of  the  employment'  if  it  oc- 

8.    Griffith  v.  Cole  Bros.  183  la.  415,  165  N.  W.  577,  1  W.  C.  L.  J.  368. 
502 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    262 

curs  while  the  employee  is  doing  what  a  man  so  employed  may 
reasonably  do  in  the  time  during  which  he  is  reasonably  employed 
and  at  a  place  where  he  may  reasonably  be  during  that  time,  and 
it  arises  'out  of  the  employment  when  it  is  something  the  risk  of 
which  may  have  been  contemplated  by  a  reasonable  person,  when 
entering  the  employment,  as  incidental  thereto.9 

Further  light  may  be  thrown  on  this  subject  by  giving  the  view 
of  the  Ohio  commission  interpreting  the  class  of  act  wherein  it  is 
necessary  only  for  the  injury  to  occur  "in  the  course  of  the  em-, 
ployment."  "We  have  had  occasion  to  consider  the  meaning  of 
the  words  'in  the  course  of  employment'  as  they  are  employed  in 
the  above-mentioned  sections  in  a  number  of  claims  heretofore  de- 
cided by  us,  and  we  have  held  repeatedly  that  in  order  to  be  com- 
pensable,  the  injury  need  not  result  from  an  accident  if  the  in.jiuy 
is  sustained  while  the  employee  is  in  the  performance  of  services 
which  he  was  employed  to  perform  by  his  employer.  It  is  true 
that  we  have  not  considered  death  from  natural  causes  while  in 
the  course  of  employment,  an  injury  sustained  in  the  course  of 
employment,  and  in  claim  No.  35163,  where  an  employee  was  at- 
tacked by  apoplexy  or  cerebral  hemorrhage,  from  the  effects  of 
which  he  died,  and  where  it  appeared  that  the  attack  was  not 
brought  on  by  any  extraordinary  or  unusual  exertion  on  the  part 
of  the  employee,  we  held  that  the  death  was  due  to  natural  causes 
and  not  to  an  injury  in  the  course  of  employment.  But  the 
death  of  Anna  Schwenlein  was  not  due  to  natural  causes.  It  was 
due  to  the  malicious  and  felonious  act  of  a  fellow  employee.  That 
it  was  due  to  an  injury  cannot  be  questioned.  The  injury  was 
sustained  while  the  deceased  was  at  work.  We  conclude  that  her 
death  was  caused  by  an  injury  while  in  the  course  of  employ- 
ment."10 

In  the  conclusion  the  court  in  the  Iowa  case,  supra,  quotes  with 

approval  the  following  from  page  73  Corpus  Juris  (W.  C.) :     'In 

•l 

9.    Hollenbach  Co.  v.  Hollenbach,  181  Ky.,  262,  204  S.  W.  152,  2  W.  C. 
L.  J.  493;    See.  also,  Feda  v.  Cudahy  Packing  Co..  102  Nebr.,  110,  166  N.  W. 
190,  1  W.  C.  L.  J.  649;    Pierce  v.  lioyer-Van  Kuran  Lumber  &  Coal  Co., 
99  Nebr.  321,  156  N.  W.  509. 
10.    In  re  Schwenlein,  1  Bull.  Ohio  Ind.  Com.  136. 

503 


§  262  WORKMEN'S  COMPENSATION  LAW 

determining  whether  an  accident  arose  out  of  and  in  the  course 
of  the  employment,  each  case  must  be  decided  with  reference  to 
its  own  attendant  circumstances:  and  it  has  indeed  been  stated 
rather  broadly  but  by  eminent  authority  that  argument  by  an- 
alogy is  valueless."11 

Where  an  employee  was  killed  by  being  struck  with  a  bar  of 
iron,  which  was  pushed  from  the  floor  above  by  a  workman  in  the 
employment  of  another  contractor  on  the  same  building,  the 
court  said:  "It  remains  to  be  considered  whether  the  accident 
arose  both  'out  of  and  in  the  course  of  his  employment.'  For 
an  accident  to  arise  out  of  and  in  the  course  of  the  employment,  it 
must  result  from  a  risk  reasonably  incidental  to  the  employment. 
As  was  said  by  Buckley,  L.  J.,  in  Fitzgerald  v.  Clarke  &  Son, 
(1908),  2  K.  B.  796,  77  L.  J.  K.  B.  10-18.  'The  words  "out  of" 
point,  I  think,  to  the  origin  and  cause  of  the  accident;  the  words 
"in  the  course  of,"  to  the  time,  place,  and  circumstances  under 
which  the  accident  takes  place.  The  former  words  are  descriptive 
of  the  character  or  quality  of  the  accident.  The  latter  words 
relate  to  the  circumstances  under  which  an  accident  of  that  char- 
acter or  quality  takes  place.  The  character  or  quality  of  the  ac- 
cident as  convey  by  the  words  "out  of,  involves,  I  think,  the 
idea  that  the  accident  is  in  some  sense  due  to  the  employment. 
It  must  be  an  accident  resulting  from  a  risk  reasonably  incident 
to  the  employment.  'We  conclude,  therefore,  that  an  accident 
arises  'in  the  course  of  the  employment'  if  it  occurs  while  the  em- 
ployee is  doing  what  a  man  so  employed  may  reasonably  do  w'th- 
in  a  time  during  which  he  is  employed,  and  at  a  place  where  he 
may  reasonably  be  during  that  time.  That  the  findings  of  fact  in 
the  present  case  justified  the  conclusion  that  the  accident  to  Bry- 
ant occurred  'in  the  course  of  his  employment  is  beyond  dispute. 
We  are  also  of  opinion  that  the  conclusion  of  the  common  picas 
judge  that  the  accident  arose  'out  of  the  employment  was  like- 
wise justified.  We  conclude,  therefore,  that  an  accident  arises 
'out  of  the  employment  when  it  is  something  the  risk  of  which 

11.     Kitchenham  v.  Steamship  Johannesburg,  (1911),  A.  C.  417,  27  T.  L. 
Rep.  504,  4  B.  W.  C.  C.  311;    Blair  v.  Chilton,  8  B.  W.  C.  C.  324;    Dietzen 
&  Co.  v.  Industrial  Board,  279  111.  11,  116  N.  E.  684. 
504 


ACCIDENT  ARISING  OI'T  OP  COURSE  OP  EMPLOYMENT.         §    262 

might  have  been  contemplated  by  a  reasonable  person,  when  en- 
tering the  employment,  as  incidental  to  it.  A  risk  is  incidental 
to  the  employment  when  it  belongs  to  or  is  connected  with  what 
a  workman  has  to  do  in  fulfilling  his  contract  of  service.  And  a 
risk  may  be  incidental  to  the  employment  when  it  is  either  an  or- 
dinary risk  directly  connected  with  the  employment,  or  an  ex- 
traordinary risk  which  is  only  indirectly  connected  with  the  em- 
ployment owing  to  the  special  nature  of  the  employment."  '-'. 

The  English  writer  Rnegg  succinctly  summarizes  as  follows  the 
law  on  tliis  subject,  in  the  8th  edition  of  his  work  on  Employ 
Liability  and  Workmen's  Compensation,  p.  373-374:  "1.  That 
the  onus  of  proving  both  that  the  accident  arose  out  of  and  in 
the  course  of  the  employment,  rests  upon  the  applicant.  2.  That 
the  accident  does  not  arise  out  of  and  in  the  employment  if  it 
is  caused  by  the  workman  doing  something  entirely  for  his  own 
purposes:  or  3.  The  same  result  follows  when  the  workman  does 
something  which  is  not  part  of  his  duty  towards  his  employer,  and 
which  he  has  no  reasonable  grounds  for  thinking  it  was  his  duty 
to  do.  4.  The  accident  may  arise  out  of  and  in  the  course  of  the 
employment,  if  the  act  which  occasioned  it,  although  not  strictly 
in  the  scope  of  the  workman's  employment,  is  done  upon  an 
emergency.  5.  It  may  be  said  to  arise  out  of  the  employment  if, 
it  being  the  workmen's  duty  to  do  the  act,  the  accident  arises  from 
his  doing  it,  in  an  improper  manner.  6.  It  may  arise  out  of  and 
in  the  course  of  the  employment,  if  occurring  on  the  employer's 
premises,  when  the  workman  has  not  actually  commenced  his  work, 
or  after  he  has  finished.  7.  It  may  arise  out  of  and  in  the  course 
of  the  employment  if,  the  workman's  duties  not  being  clearly  de- 
iiued,  he  may  reasonably  have  thought  it  a  duty  to  do  the  thing  in 
the  course  of  which  the  accident  occurred.  8.  It  does  not  arise 
out  of  and  in  the  course  of  the  employment,  if  occasioned  by  the 
wilfully  tortious  act  of  a  fellow  servant,  when  the  risk  of  such  mi 
act  cannot  be  said  to  be  one  of  the  risks  incidental  to  the  service. 
9.  It  may  arise  out  of  and  in  the  course  of  the  employment  if, 
though  occasioned  tortiously,  even  wilfully,  by  the  act  of  a  thirl 

12.     Bryant  v.  Fissell,  84  N.  J.  L.  42,  86  Atl.  458,  3  N.  C.  C.  A.  585. 

505 


§  263  WORKMEN'S  COMPENSATION  LAW 

party,  the  risk  of  injury  from  such  acts  is  found  to  be  one  of 
the  risks  incidental  to  the  employment." 

§  263.  Accidents  Sustained  in  Going  to  and  from  the  Place 
of  Employment. — A. — Going  to  Work  in  Own  Conveyance. — 
Where  an  employee  was  injured  when  his  motorcycle  collided  with 
a  street  car  while  he  was  on  his  way  to  get  certain  materials  needed 
in  the  course  of  the  employment,  it  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment.  The  court 
saying  that  the  going  for  the  goods  wras  strictly  within  his  duties. 
The  fact  that  he  rode  upon  a  motorcycle  which  he  commonly  used 
in  performing  errands  and  in  going  to  and  from  his  home  does 
not  alter  the  case.  He  had  the  right  to  use  such  instrumentalities 
as  were  best  fitted  to  perform  his  master's  work.13 

Where  an  employee  was  struck  and  injured  by  an  automobile 
while  waiting  to  board  a  street  car,  in  going  from  one  job  to  an- 
other, it  was  held  that  the  accident  arose  out  of  and  in  the  course 
of  the  employment;  the  court  saying:  "We  think  it  is  clear  from 
the  record  that  the  employment  of  the  deceased  was  to  go  from 
place  to  place  to  trim  trees,  and  that  in  the  discharge  of  these 
duties  it  was  not  only  necessary  for  him  to  supervise  the  work, 
but  it  was  necessary,  in  the  course  of  his  employment,  to  proceed 
from  one  job  to  the  other,  adopting  such  means  of  locomotion  as 
he  might  desire.  Being  clearly  of  the  opinion  that  the 

record  warrants  the  conclusion  that  at  the  time  of  the  injury  the 
deceased  was  within  the  ambit  of  his  employment,  we  also  think 
that  it  is  a  justifiable  conclusion  that  the  accident  can  be  fairly 
traced  to  his  employment  as  a  contributing  and  proximate  cause. 
It  is  true  that  in  going  from  one  place  to  another,  as  was  his  duty, 
he  naturally  was  compelled  to  assume  risks  not  in  any  wise  con- 
nected with  the  trimming,  planting,  and  treating  of  shade  trees. 
But  his  employment  extended  further  than  this  and  necessarily 
obliged  him,  in  the  discharge  of  his  duties,  to  go  from  place  to 
place,  and  in  so  doing  to  assume  the  risks  of  traffic  upon  the 
streets.  Where  employees  are  compelled  during  the  course  of  their 

13.     Coster  v.  Thompson's  Hotel  Co.,  102  Neb.  585,  168  N.  W.  191,  16  N. 
C.  C.  A.  905. 
506 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPIX)YMKNT.        §    263 

employment  to  travel  about  the  streets,  it  does  not  seem  to  us  to 
In-  unreasonable  to  say  that  the  danger  of  being  struck  by  street 
ears,  automobiles,  and  traffic  of  every  description  should  be  taken 
account  of.  We  think  it  must  be  said  that  the  very  nature  of  the 
occupation  of  the  deceased  itself  exposed  him  to  the  unusual  risk 
and  danger  of  an  accident  of  this  nature."14 

A  claim  adjuster  was  injured  while  riding  on  one  of  his  em- 
ployer's cars  to  the  place  of  his  employment,  after  serving  a  sub- 
poena. In  reversing  an  award  in  claimant*!  favor,  the  court  said: 
"To  be  within  the  legislative  intent,  the  work  or  occupation  must 
subject  the  employee  to  the  hazards  contemplated  by  this  law.  The 
decedent  was  riding  upon  the  car,  not  as  an  employee  in  the  per- 
formance of  a  duty  relating  to  the  car,  but  was  a  passenger  fdr 
his  own  personal  convenience.  He  was  subject  to  the  same  hazards 
as  any  other  passenger  in  the  car,  and  the  hazard  came,  not  be- 
cause he  was  operating  a  railroad,  but  because  he  was  riding  in  a 
car,  and  the  hazards,  so  far  as  the  accident  is  concerned,  were  no 
greater  upon  the  car  than  they  would  have  been  upon  a  bus  or 
any  public  place  where  people  assemble.  He  was  not  necessary  to 
or  an  incident  to  the  operation  of  the  car,  and  had  no  duty  upon 
the  car.  *  *  *  The  mere  fact  that  an  employee  is  in  the 
service  of  a  railroad  company  does  not  bring  him  within  the  act; 
he  must  be  engaged  in  the  hazardous  work,  or  in  some  way  be 
subject  to  the  hazards  arising  from  the  nature  of  the  work."15 

Ordinarily  when  an  employee  is  injured  while  traveling  to  or 
from  his  place  of  work,  and  is  not  paid  for  the  time  consumed  in 
going  and  coming,  the  means  of  conveyance  not  being  furnished 
by  the  employer  and  Ihe  employee  having  departed  from  or  not 
yet  reached  the  employer's  premises,  the  injury  does  not  arise  out 
of  the  employment.1" 

14.  Kunze  v.  Detroit  Shade  Tree  Co.,  192  Mich.  435,  158  N.  W.  851.  ir. 
N.  C.  C.  A.  253. 

15.  In  re  Brown,  173  App.  Div.  432,  159  N.  Y.  Supp.  1047,  15  N.  C.  C    V 
290. 

16.  De   Constantino  v.   Public  Service   Comm.,   75  W.  Va.  32,   83  S.  E. 
88,  L.  R.  A.  1916A  329;     Leveronl  v.   Travelers'  Ins.  Co..  219  Mass.  48?, 
107  N.  E.  349. 

507 


§  263  WORKMEN'S  COMPENSATION  LAW 

Where  the  duties  of  a  collector  of  accounts  for  defendant  re- 
quired him  to  go  to  another  town,  and  he  was  injured  on  his  way 
there,  his  injury  arose  out  of  and  in  the  course  of  the  employ- 
ment.17 

An  employee,  who  was  engaged  as  a  repairer  of  musical  instru- 
ments, was  permitted,  but  not  obliged,  to  do  work  at  his  home,  and 
on  the  morning  in  question  he  had  been  working  in  his  own  shop 
on  work  taken  home  the  previous  evening  and  he  was  injured 
by  slipping  on  ice  while  going  to  take  a  car  to  go  to  his  employer's 
store,  it  was  held  that  he  was  not  injured  in  the  course  of  his  em- 
ployment, and  the  injury  did  not  arise  out  of  his  contract  of 
employment.18 

'Where  a  workman  who  had  been  engaged  to  load  a  van,  was 
promised  employment  in  unloading  if  he  was  there  upon  the  arriv- 
al of  the  van,  met  with  an  accident  while  cycling  to  the  place,  it 
was  held  that  the  accident  did  not  arise  out  of  or  in  the  course 
of  the  employment.19 

A  workman,  having  missed  his  work  train,  was  an  his  way  to 
get  a  pass  in  order  to  overtake  the  work  train,  when  he  was  injured. 
It,  was  held  that  the  relation  of  master  and  servant  did  not  exist 
at  the  time  of  the  injury.20 

A  city  employee,  while  going  to  his  place  of  work,  fell  because 
of  a  defective  sidewalk,  and  suffered  a  broken  kneecap.  Blood 
poisoning  set  in  and  caused  death.  In  allowing  compensation  the 
court  said:  "In  the  instant  case,  when  the  servant  reported  to 
his  foreman  and  received  his  instructions  for  the  day  and  pro- 
ceeded to  carry  out  these  instructions  by  starting  for  the  place 
where  he  was  to  work,  we  think  the  relation'of  master  and  servant 
commenced,  and  that  in  walking  to  the  place  of  work  the  servant 

17.  In  re  Raynes,  64  Ind.  App.— ,  118  N.  E.  387,  1  W.  C.  L.  J.  562. 

18.  Indus.  Com.  v.  Anderson,   (Colo.),  169  Pac.  135,  1  W.  C.  L.  J.  305, 
15  N.  C.  C.  A.  249. 

19.  Perry  v.  Anglo  American  Decorating  Co.,  (1910),  3  B.  W.  C.  C.  310: 
Slade  v.  Taylor,  (1915),  W.  C.  &  Ins.  Rep.  53,  15  N.  C.  C.  A.  250. 

20.  Missouri,  K.  &  T  R.  Co.  v.  Hendricks,  49  Tex.  Civ.  App.  314,  4  N. 
C.  C.  A.  114,  108  S.  W.  745. 


508 


ACCIDENT  AK1>I.\<,   oi  T  <>K  col  KsK  OP  EMPLOYMENT.        §    263 

was  performing  a  service  growing  out  of  and  incidental  to  his 
employment."  -' 

Where  an  employee  is  required  to  go  to  outside  places  to  work 
and  to  return  to  the  employer's  office  to  report,  he  is  at  all  such 
times  acting  in  the  course  of  his  employment,  and  is  entitled  to 
compensation  if  injured  by  accident  at  such  times.22 

An  employee  injured  while  going  aboard  or  leaving  his  ship, 
using  the  proper  means,  is  entitled  to  compensation,  provided  his 
injury  arises  out  of  such  employment,  but  if  he  is  injured  on 
tlic  dock  he  is  not  within  the  protection  of  the  compensation  acts.21 

Where  a  sailor  was  drowned  while  returning  to  his  ship,  after 
a  trip  on  shore  not  connected  with  his  employment,  the  accident 
was  held  not  to  have  arisen  out  of  the  employment.24 

\Yhei-e  a  miner  sustained  injuries  on  his  way  to  work,  it  was 
held  not  to  be  an  accident  arising  out  of  the  employment.25 

A  workman  was  given  a  return  ticket  to  a  dock  railway  and 
ordered  to  report  on  board  a  ship  at  seven  o'clock  the  next  morn- 
ing. He  made  use  of  the  ticket,  and  when  crossing  the  gangway 
he  fell  between  the  dock  wall  and  the  ship  and  was  injured.  His 
pay  would  have,  commenced  when  he  reported  on  board  the  ship. 
It  was  held  that  the  giving  of  the  ticket  was  merely  a  gratuitous 
act  on  the  part  of  the  employers  and  imposed  no  duty  on  the  part 
of  the  employee  to  go  by  train,  and  that  therefore  the  accident 
did  not  arise  out  of,  nor  in  the  course  of  the  employment.28 

A  conductor  alighted  from  one  of  his  employer's  cars,  when 
he  was  returning  to  work,  and  was  struck  and  killed  by  another 

21.  City   of  Milwaukee   v.  Althoff   et  al..  156    Wis.  68.    145  N.   W.  238, 
4  N.  C.  C.  A.  110,  L.  R.  A.  1916A  327. 

22.  Coleman  v.  Giiilfoy  Cornice  Wks..  Cal.  I.  A.  C.    1  Nat.  Comp.  Jour. 
(1914)  18,  7  N.  C.  C.  A.  428;     Turgeon  v.  Fox  Co.,  1  Cal.  I.  A.  C.  D.  (1914) 
7,  7N.  C.  C.  .A.  429. 

23.  Boucher  v.  Olson  &  Muhoney  Steamship  Co.,  1  Cal.  I.  A.  C.  D.  (1914) 
12,  7  N.  C.  C.  A.  426;     Gardiner  v.  St.  of  Cal.  Printing  Office.  1  Cal.  I.  A. 
C.  D.   (1914)4,  4  N.  C.  C.  A.859. 

24.  Hyndman  v.  Craig  &  Co..  44  Irish  Law  Times  Rep.  11,  4  B.  W.  C.  C. 
438  (1910)  3  N.  C.  C.  A.  273 

25.  Anderson  v.  Fife  Coal  Co.,  Ltd.,  1910  Court  of  Sessions.  8,  47  Scot 
Law  Rep.  3.  3  B.  W.  C.  C.  539,  3  N.  C.  C.    A.  272. 

26.  Nolan  v.  Porter  &  Sons.  4  N.  C.  C.  A.  113,  2  B.  W.  C.  C.  106. 

509 


§  263  WORKMEN'S  COMPENSATION  LAW 

car.  The  court  held  that  the  accident  did  not  arise  out  of  and  in 
the  course  of  the  employment,  for  the  risks  to  which  the  employee 
was  exposed  on  his  way  to  work  were  in  no  way  connected  with 
Ws  employment.  The  employer  not  providing  a  means  of  con- 
veying the  employee  to  work,  he  was  therefore  a  mere  passenger 
on  the  car.27 

An  injury  occurring  while  the  employee  was  riding  a  bicycle, 
has  been  held  to  arise  out  of  the  employment,  where  the  use  of 
the  bicycle  was  to  further  the  master's  business,  which  could  be 
done  better  by  the  use  of  the  bicycle.  As  where  a  salesman  and 
collector  while  riding  a  bicycle  in  pursuit  of  his  employment  was 
kicked  in  the  knee  by  a  passing  horse.28  But  if  it  is  used  merely 
to  accommodate  the  workman,  a  different  rule  prevails.  Where  a 
workman,  going  from  one  farm  to  another  on  a  bicycle  to  look 
after  cattle,  was  injured  while  so  riding,  he  was  not  injured  by 
an  accident  arising  out  of  the  employment.29 

Where  an  employee  was  injured  while  boarding  a  street  car  to 
return  from  an  errand,  on  which  he  had  been  sent  by  his  employ- 
er, it  was  held  that  the  injury  was  received  in  the  course  of  the 
employment. 30 

A  janitor  who  was  ordered  to  report  back  as  quickly  as  possi- 
ble after  getting  his  lunch,  took  a  street  car  and  was  injured  on 
his  way  back  to  work.  It  was  held  that  he  was  away  from  his 
place  of  employment  for  his  own  purposes  and  returning  by  a 
means  of  conveyance  of  his  own  choosing.  His  acts  while  away 
were  in  no  way  connected  with  his  employment  nor  under  the1 
direction  of  his  employer;  and  therefore  not  in  the  cour«e  of  his 
employment  at  the  time  of  the  injury.  The  claim  was  disal- 
lowed. 31 

27.  McCabe  v.  Brooklyn  Heights  R.  R.  Co.,  S.    D.  R.  Vol.  8,  pg.    407, 
-  App.  Div.  N.  Y.  — . 

28.  McNiece  v.  Singer  Sewing  Mach.  Co.,  (1911),  S.   S.  13,  48  Scot.  L. 
R.  15,  4  B.  W.  C.  C.  351. 

29.  Green  v.  Shaw,  (1912),  1  I.  R.  480  (1912)  W.  C.  R.  25,  46  Ir.  L.  T.  18, 
5  B.  W.  C.  C.  573. 

30.  Brodie  v.  Reo  Pac.  Co.,  1  Cal.  Ind.  A.  C.  415  (1914),  12  N.  C.  C.  A. 
389;     Wheeler  v.  Maryland  Casualty  Co.,  3  Mass.  Wkm.  Comp.  Cas.  433, 
1914,  12  N.  C.  C.  A.  389. 

31.  In  re  Frisch,  Ohio  Ind.  Comm.  No.  11,  38  (1915)  12  N.  C.  C.  A.  389. 
510 


ACCiniM     VUISIXG  OUT  OP  COURSE  OP  EMPLOYMENT.        §    263 

An  employee  was  requested  to  meet  his  employer  at  a  store  ou 
a  holiday,  and  in  order  that  he  might  get  there  at  the  allotted 
time,  used  his  own  automobile-  While  cranking  the  automobile 
he  broke  hifi  arm.  In  denying  compensation  the  commission  held 
that  the  compensation  act  protected  him  while  working  at  the 
place  of  his  employment,  but  that  while  going  to  and  from  work, 
his  risks  were  the  same  as  those  of  the  commonaHy  and  not  those 
of  the  business  in  which  he  was  engaged.  The  accident  did  not 
arise  out  of  or  in  the  course  of  his  employment. 82 

An  employee  used  his  own  motorcycle  going  to  and  from  jobs, 
with  the  knowledge  and  consent  of  his  employer,  receiving  no  ox- 
tra  compensation  for  its  use.  While  cleaning  the  clutch  of  the 
motorcycle  at  the  place  of  employment,  his  fingers  were  caught 
in  the  chain  guard,  resulting  in  traumatic  amputation  of  the 
distal  phalanges  of  two  of  his  fingers.  In  affirming  an  award, 
based  on  a  finding  that  the  accident  arcv^e  out  of  and  in  tho 
course  of  the  employment,  the  court  said:  "Clearly,  if  the 
motorcycle  was  only  used  for  the  convenience  of  the  claimant  in 
bringing  him  to  and  from  his  place  of  work,  the  case  would  not 
be  within  the  act.  But  the  evidence  shows  that  from  time  to 
time  it  was  used  in  the  business  in  going  to  and  from  the  wrork  off 
the  premises,  and  that  at  other  times  when  it  had  been  cared  for 
during  working  hours,  no  question  had  been  raised  by  the  employ- 
«-r.  It  could  not  be  used  in  the  business  unless  kept  in  proper  con- 
dition. The  facts  tlmt  the  workman  was  engaged  upon  it  near  the 
place  of  Imsiness  during  working  hours,  and  that  it  was  frequently 
use,l  in  the  Imsiness,  do  not  make  the  findings  of  the  commission 
unreasonable."88 

An  employee  sustained  a  fracture  of  the  leg,  as  a     result    of  a 
collision  with  a  street  ear  while  riding  his  motorcycle.     He 
on  his  usual  way  from  his  home  to  the  store  where  he  was  employ- 
ed, and  intended  to  stop  at  a  market  and    buy    fresh    vegetables 
for  his    employer,  according    to  his  usual  custom.    It    was  held 

32.  Graham  v.  Daly  Bros.,  2  Cal.  I.  A.  C.  793,  1915.  12  N.  C.  C.  A.  386; 
Gordon  v.  Eby.  1  Cal.  I.  A.  C.  D.  (1914).  13.  4  N.  C.  C.  A.  858;    Oldhani 
v.  Southwestern  Surety  Co.,  1  Cal.  I.  A.  C.  D.  (1914)  7,  7  N.  C.  C.  A.  4l<>. 

33.  Kingsley  v.  Doqovan.  169  N.  Y.  App.  Div.  828,  155  N.  Y.  S.  801.  12 
N.  C.  C.  A.  384. 

511 


§  263  WORKMEN'S  COMPENSATION  LAW 

that  while  the  boy  was  going  to  work  on  the  portion  of  the  way 
between  his  home  and  the  market  he  was  not  engaged  in  his  em- 
ployment, and  that  the  risk  resulting  in  the  accident  had  no 
connection  with  the  employment- 34 

A  fireman  returning  to  work  on  a  motorcycle  after  his  midday 
meal  collided  with  defendant 's  automobile  and  was  seriounly  in- 
jured. It  was  held  that  the  city  street  was  not  on  the  "premises 
of  his  employer,"  within  the  meaning  of  the  Wisconsin  Act  (L. 
1913,  C.  599),  and  that  the  case  did  not  therefore  come  under  the 
compensation  act.35 

A  well  borer  was  allowed  to  ride  to  and  from  work  on  his  em- 
ployer's time.  His  bicycle  was  struck  by  an  automobile  which 
resulted  in  a  facture  of  his  leg.  It  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment. 36 

A  lawyer's  clerk,  who  was  also  a  court  clerk,  usually  made  the 
trip  between  the  places  of  employment  by  train,  but  sometimes 
u^ed  his  bicycle  to  his  employer's  knowledge  and  without  his  dis- 
approval. One  time  on  returning  from  the  court  on  his  bicycle 
he  was  struck  by  a  motor  car,  sustaining  injuries  resulting  in  his 
death.  Reversing  the  decision  of  the  lower  court,  it  war,  held 
that  the  use  of  his  own  bicycle  was  not  at  the  direction  of  the  em- 
ployer, and  that  the  road  over  which  he  was  required  to  travel 
was  not  attended  by  any  peculiar  risk,  nor  was  the  bicycle  such 
a  dangerous  article  that  its  permitted  occasional  use  made  the 
employer  liable  for  the  consequences  o-f  an  accident  on  the  road. 
The  accident  did  not  arise  out  of  the  employment,  and  compensa- 
tion was  denied. 3T 

Compensation  was  allowed  for  the  death  of  a  barge  captain, 
who  was  drowned  in  the  night  while  returning  from  a  cafe  on 
shore  and  crossing  intermediate  barges  to  reach  his  own. 38 

34.  Hummer  v.  Hennings,  2  Cal.  I.  A.  C.  857  (1915)   12  N.  C.  C.  A.  384. 

35.  Hornburg  v.  Morris,  163  Wis.  31,  157  N.  W.  556,  12  N.  C.  C.  A.  383. 

36.  Hiserman  v.  Garside,  1  Cal.  I.  A.  C.  516  (1914)  12  N.  C.  C.  A.  383. 

37.  Read  v.  Baker,  32  T.  L.  R.  382,. 60  Sol.  J.  402,  140  L.  T.  466,  12  N.  C. 
C.   A.   382. 

38.  Countrymen  v.  Neuman,     174  App.  Biv.     900,     159  N.  Y.  S.   1108; 
Lazarick  v.  N.  Y.,  New  Haven  &  Hartford  R.  R.  Co.,  171  App.  Div.  959, 
155  N.  Y.  S.  1119. 

512 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   264 

An  employee  was  injured  while  going  to  assist  in  unloading  a 
steam  shovel.  He  was  riding  his  own  motorcycle  and  was  paid 
for  the  time  in  going  to  and  coming  from  the  place  of  employ- 
ment. It  was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment. 39 

§  264.  Going  from  Work  in  Own  Conveyance. — An  employee 
quit  work,  mounted  his  motorcycle  and  started  for  home.  When 
riding  down  the  street  he  collided  with  an  automobile  driven  by 
another  employee.  He  sustained  injuries  which  resulted  in  his 
death.  In  holding  that  the  accident  did  not  arise  out  of  or  in  the 
course  of  the  employment,  the  court  said:  "To  come  within 
the  term  'injury  received  in  the  course  of  employment'  it  must 
be  shown  that  the  injury  originated  in  the  work,  and,  further, 
that  it  was  received  by  the  employee  while  engaged  in  or  about 
the  furtherance  of  the  affairs  of  the  employer.  If  it  be  conceded 
that  the  injury  originated  in  the  work,  it  would  still  be  necessary, 
in  our  opinion,  to  show  that  the  employee  was  engaged  in  the 
furtherance  of  his  employer's  business."40 

An  officer  of  a  corporation  was  also  employed  in  the  capacity 
of  looking  after  the  collection  of  debts,  and  upon  hearing  that 
several  debtors  might  be  found  at  a  certain  hotel  barroom,  he 
proceeded  there  on  an  interurban  car.  After  interviewing  several 
debtors,  he  spent  the  evening  at  another  hotel  and  at  the  Elks 
club  rooms.  At  11  p.  m.  discovering  that  he  had  missed  the 
last  interurban  car,  he  hired  a  taxicab  to  take  him  home.  While 
enroute  to  his  home,  the  taxi  stopped  for  gasoline  and  it  was 
necessary  for  him  to  alight,  and  he  was  struck  by  another  car, 
sustaining  serious  injuries.  The  board  certified  the  above  facts 
to  the  court  with  the  question  whether  the  accident  arose  out  of 
and  in  the  course  of  the  employment.  The  court  held  that  these 
were  facts  for  the  determination  of  the  board  and  if  the  board 

39.  Cummings  v.  Johnson  Const.  Co.,  (1916),  9  N.  Y.  St.  Dep.  Rep.  369. 

40.  Indemnity  Co.  v.  Dinkins,  (Tex.  Civ.  App.),  211  8.  W.  949   (1919), 
18  N.  C.  C.  A.  1034,  4  W.  C.  L.  J.  294;     In  re  Peter  S.  Winchester,  2nd 
A.  R.  U.  S.  C.  C.  262;  In  re  Julius  Rosenberg,  2nd  A.  R.  U.  S.  C.  C.  263; 
Kirby  Lumber  Co.  v.  Scurlock,  —Tex.  Civ.  App.—  (1921).  229  8.  W.  975. 

513 
W.  C-— 33 


§  264  WORKMEN'S  COMPENSATION  LAW 

found  that  the  business  of  the  corporation  detained  him  beyond 
the  time  for  the  last  interurban  car,  then  the  board  might  find  that 
the  accident  did  arise  out  of  and  in  the  course  of  the  employment, 
but  if  the  business  of  the  corporation  was  only  incidental  to  a 
holiday  afternoon  and  that  social  affairs  detained  him,  then  the 
board  must  find  otherwise.41 

An  employee  engaged  in  setting  up  machinery  at  different  places 
for  his  employer  was  killed  while  on  his  way  home  to  spend 
Sunday,  when  the  jitney  he  had  hired  was  struck  by  a  train. 
Upon  conflicting  evidence  as  to  whether  or  not  the  employee 
was  to  leave  a  job  before  it  was  finished  for  the  purpose  of 
spending  Sunday  in  the  City,  the  Court  held  that  the  evidence  was 
not  sufficient  to  justify  a  finding  that  the  accident  arose  out  of 
and  in  the  course  of  the  employment.42 

Where  a  workman  an  his  way  home  attempted  to  board  a  train 
moving  up  an  incline  and  was  killed  in  the  attempt  it  was  held 
that  the  accident  did  not  arise  out  of  the  employ ment.4a. 

"Where  a  workman  was  injured  by  accident  on  a  train  on  which 
he  was  riding  while  going  home  from  work  pn  a  gratuitous  pass, 
given  him  by  his  employer  and  which  he  was  not  obliged  to  use, 
it  was  held  that  the  accident  did  not  arise  out  of  the  employment.44 
.  An  employee  who  was  paid  by  the  hour  was  furnished  a  bicycle 
for  his  work,  and  while  riding  home  one  evening  on  the  main  road 
he-  was  run  into  and  killed  by  a  motor  lorry.  It  was  held 
that,  since  it  was  no  part  of  his  duty  to  ride  home  on  the  bicycle 
the  accident  did  not  arise  in  the  course  of  his  employment.45 

41.  In  re  Raynes,  64  Ind.  App.— ,  118  N.  E.  387,  1  W.  C.  L.  J.  562,  16 
N.  C.  C.  A.  909. 

42.  Inter.  Harvester  Co.  of  N.  J.  v.  Indus.  Bd.  of  111.,  282  111.  489,  118  N. 
E.  711,  1  W.  C.  L.  J.  762. 

43.  Pope  v.  Hill's  Plymouth  Co.,  (1912),  W.  C.  Rep.  15,  105  Law  Times 
Rep.  678,  5  B.  W.  C.  C.  175,  3  N.  C.  C.  A.  273. 

44.  Whitbread  v.   Arnold,  1  B.  W.  C.  C.   317,  99  Law  Times  103  (1908) 
3  N.  C.  C.  A.  272. 

45.  Edwards  v.  Wingham  Agriculture    &    Imp.    Co.,    (1913),  W.  C.    & 
Ins.  Rep.  642,  109  L.  T.  Rep.  50,  82  L.  J.  K.  B.  998,  6  B.  W.  C.    C.  511,  4 
N.  C.  C.  A.    115;     Cook  v.  Owners  of  "Montreal,"  108   L.  T.  Rep.  164, 
29  T.  L.  Rep.  233,  6  B.  W.  C.  C.  220  (1913)   4  N.  C.  C.  A.  115. 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    264 

A  city  employee  rode,  home  on  the  horse  he  was  using.  While 
taking  it  to  a  watering  place,  as  was  his  custom,  and  before  reach- 
ing the  trough,  the  horse  ran  away  and  fatally  injured  the  driver. 
It  was  not  shown  that  he  had  any  right  to  use  the  horse  of  his 
employer  as  a  means  of  getting  home,  but  to  water  the  horse  first 
was  one  of  his  dutirs.  It  \v;is  held  that  his  injury  arose  out  of  and 
in  the  course  of  his  employment.4* 

Deceased  was  employed  to  collect  cream  and  deliver  butter. 
He  used  his  own  automobile,  which  overturned  while  passing  an- 
other ear  and  he  was  killed.  As  was  his  custom  deceased  was 
taking  home  butter  to  deliver  on  his  way.  The  commission  found 
that  this  fact  was  sufficient  to  prove  that  he  was  still  performing 
a  service  in  the  course  of  his  employment  and  compensation  was 
allowed.47 

A  deputy  marshal,  riding  a  motor  cycle,  was  going  home  when 
he  collided  with  a  horse  and  buggy  and  was  badly  injured.  The 
accident  occurred  a  few  moments  before  his  day's  work  ended  and 
while  he  was  going  home  to  see  his  wife,  intending  to  return  to  the 
to\vn  hall  and  remain  for  the  night.  On  his  way  he  also  intended 
to  see  about  a  street  light  which  was  reported  as  being  out  of  order, 
this  being  part  of  his  duties.  The  commission  held  that  at  the 
time  <>f  the  accident  the  applicant  was  not  performing  any  service 
growing  out  of,  or  in  the  course  of  his  employment.  lie  was 
going  home  for  purposes  of  his  own  and  the  fact  that  he  was  going 
to  see  about  a  street  light  or  that  it  was  a  few  moments  before  his 
•  lay's  work  ended,  does  not  bring  him  within  the  provisions  of 
the  act." 

An  employee  had  quit  work  and  left  the  premises.  He  \va^ 
sitting  in  his  buggy  waiting  for  his  son,  when  the  horse  took 
fright  and  ran  away.  It  was  held  that  the  injury  sustained  in  the 
runaway  did  not  arise  out  of  or  in  the  course  of  the  employment." 

46.  Pigeon  v.  Employers'  Liab.  Assur.  Corp.,  Ltd.,  216  Mass.  61,  102  N. 
E.  932,  4  N.  C.  C.  A.  516. 

47.  Golden  v.  Delta  Creamery  Co..  2  Cal.  I.  A.  C.  734,  (1915),  12  N.  C. 
C.  A.  386. 

48.  Eastman  v.  St.  Comp.  Fund,  2  Cal.  I.  A.  C.  350  (1915),  12  N.  C.  C. 
A.  387. 

49.  In  re  McCall.  Ohio  I.  C.  No.  121401,  Nov.  4,  1915. 

515 


§  265  WORKMEN 'S  COMPENSATION  LAW 

§  265.  Going  to  and  from  Work  in  Conveyances  Furnished 
by  Employer. — The  Claimant  was  taking  the  garbage  collection 
equipment,  part  of  which  belonged  to  the  city,  to  its  usual  plac3 
of  storage  and  care  so  that  it  should  be  ready  for  the  work  of  the 
following  day.  "We  can  hardly  conceive  of  a  service  which  grows 
out  of  and  is  incidental  to  his  employment  as  a  garbage  collector 
if  this  is  not  such  a  service.50 

Two  employees  of  a  tobacco  company  were  killed  when  an  auto- 
mobile, which  was  furnished  in  accordance  with  the  terms  of  the 
contract  of  employment,  skidded  and  collided  with  a  tree.  In  de- 
ciding that  the  injury  resulted  from  an  accident  arising  out  of  and 
in  the  course  of  the  employment,  the  court  stated  the  established 
rule  to  be  as  follows : 

"That  the  emplo yer's  liability  in  such  cases  depends  upon 
whether  the  conveyance  has  been  provided  by  him,  after  the 
real  beginning  of  the  contract  of  employment,  for  the  mere  use 
of  the  employees,  and  is  one  which  the  employees  are  required, 
or  as  a  matter  of  right  permitted,  to  use  by  virtue  of  that 
contract,  Donovan's  Case,  217  Mass.  78,  104  N.  E.  431  Ann.  Gas., 
1915  C,  778.  *  *  *  Although  the  decedents,  at  the  time  of  the 
accident,  had  not  actually  commenced  their  work  upon  the  tobac- 
co plantation  of  the  defendant  company,  it  is  plain  that  their 
transportation  was  a  part  of  the  contract  of  employment  with 
this  defendant.  When  they  were  injured  they  were  not  passen- 
gers, paying  a  stipulated  fare  for  the  conveyance  to  their  work. 
The  automobile  which  skidded  and  caused  the  accident  in  question 
was  furnished  and  paid  for  by  the  defendant  company.  The  re- 
lation that  then  existed  between  the  women  and  the  Sumatra  To- 
bacco Company  was  that  of  master  and  servant,  and  not  that  of 
carrier  and  passenger.  At  the  time  they  were  injured  they  were 
laborers  in  the  employ  of  the  tobacco  company.  Pigeon  v.  Lan-?, 
80  Conn.  240,  67  Atl.  886,  11  Ann.  Gas.  371;  Killduff  v.  Boston 
Elevated  Railway,  195  Mass.  308,  309,  81  N.  E.  191,  9  L.  R.  A. 
(N.  S.)  873.  This  being  so,  the  case  is  like  Swanson  v.  Latham  et 
al.,  92  Com.  87,  101  Atl.  492,  in  which  we  stated  that:  'An  in- 

50.     City  of  Milwaukee  v.  Fera  et  al.,  170  Wis.  348,  174  N.  W.  926. 
516 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    265 

jury  received  by  an  employee  while  riding,  pursuant  to  his  con- 
tract of  employment,  to  or  from  his  work  in  a  conveyance  furnish- 
ed by  his  employer,  is  one  which  arises  in  the  course  of  and  cvit 
of  the  employment.'  "  ". 

Where  a  brewing  Company's  solicitor  was  driving  to  a  place 
where  he  contemplated  continuing  an  interview  begun  earlier 
in  the  day  regarding  certain  matters  connected  with  his  employ- 
ment, the  automobile,  which  he  was  driving  and  which  was  fur- 
nished by  his  employer  for  use  in  the  business,  collided  with  a 
pile  of  bricks  and  turned  over  killing  the  solicitor,  the  court  saM : 
"We  are  of  the  opinion  that  *  *  *  an  inference  can  be 
drawn  that  Mr.  McMinii,  at  the  time  of  his  accident,  was  on  his 
way  to  the  place  of  business  of  Perrigo,  in  the  course  of  his  em- 
ployment, and  that  the  accident  arose  out  of  and  in  the  course  of 
his  employment."82 

While  an  employee  was  waiting  for  a  street  car  on  his  way  lo 
work,  his  employer  drove  up  in  a  Ford  truck  and  requested  the 
employee  to  get  on  the  truck  and  go  with  him  to  the  pipe  yard  to 
get  some  pipe  and  collect  other  pipe  to  take  to  the  place  where 
they  were  installing  a  sewer.  While  en  route,  the  automobile  was 
struck  by  a  street  car,  injuring  the  employee.  The  court  held  that 
the  injury  occurred  while  the  employee  was  performing  an  act 
which  was  necessarily  incident  to  the  employment  and  was  acting 
at  the  direction  of  the  employer.  It  did  not  matter  that  the  ac- 
cident happened  before  they  arrived  at  the  place  where  the  main 
work  of  the  employment  was  to  be  done.  An  injury  may  occur 
within  the  course  of  the  employment  and  arise  out  of  it  even 
though  it  happen  while  the  employee  is  on  his  way  to  and  from 

51.  Scalia  v.  American  Tobacco  Co.  et  al.,  and  Salia  v.  Same.  105  All. 
346,  3  W.  C.  L.  J.  230,  93  Conn.  82;  Dominquez  ".  Pendoia,  — Cal.  App. — , 
(1920),  188  Pac.  1025,  8  W.  C.  L.  J.  3;     In  re  Lee  Madero,  3rd  A.  R.  U.  8. 
C.  C.  174;     In  re  Jacob  D.  Snider,  3rd  A.  R.  U.  S.  C.  C.  175;     In  re  Rich- 
ard v.  Tyler,  2nd  A.  R.  U.  S.  C.   C.  273;     Central  Const.  Corp.  v.  Har- 
rison, — Md.  App.—,  (1920),  112  All.  627. 

52.  McMinn  v.  C.  Kern  Brewing  Co.,  202  Mich.  414.  168  N.  W.  542,  17 
N.  C.  C.  A.  957. 

517 


§  265  WORKMEN'S  COMPENSATION  LAW 

his  usual  place  of  employment  or  while  doing  an  act  that  is  neces- 
sary to,  or  an  incident  of  the    employment.53 

Applicant  was  away  from  his  place  of  employment  and  contem- 
plated taking  a  stage  back  to  the  place  of  his  employment.  Wli'm 
starting  back  he  met  a  superintendent  of  the  mine  where  appli- 
cant worked,  who  offered  to  let  him  ride  back  on  trucks  of  thoir 
employer  if  he  would  assist  in  loading  the  trucks,  and  the  owner 
would  pay  him  for  his  labor.  The  offer  was  accepted,  and  on  the 
way  back  applicant  was  injured.  In  denying  compensation  the 
court  said  that  while  riding  back  on  the  truck  the  employee  was 
engaged  in  no  service  of  his  employer,  and  that  the  risk  assumed 
was  no  different  than  if  he  had  ridden  back  in  the  stage.  The  ac- 
cident did  not  arise  out  of  and  in  the  course  of  the  employment.54 

An  errand  boy  was  injured  while  returning  from  an  errand. 
The  employer  furnished  a  bicycle  for  use  in  this  connection. 
When  returning  the  boy  caught  hold  of  a  passing  truck  and  was 
thrown  in  front  of  another  car  when  the  truck  suddenly  turned 
a  corner.  The  court  held  that  the  accident  arose  out  of  and  in  tbe 
course  of  the  employment.55 

Where  a  nurse  was  required  to  use  a  bicycle  in  going  to  visit 
patients,  and  sustained  injuries  while  en  route,  it  was  held  that 
the  accident  was  not  one  arising  out  of  the  employment.56 

Compensation  was  denied  for  the  death  of  an  employee,  who 
was  killed  while  attempting  to  board  a  moving  train  to  go  to  re 
port  to  his  employer.  The  court  held  that  the  deceased  addel 
peril  to  the  usual  risk  connected  with  his  employment  when  ,''e 
attempted  to  board  the  moving  car.  The  accident  did  not  ariso 
out  of  and  in  the  course  of  the  employment.57 

53.  Scully  v.  Indus.  Comm.  of  111,,  284  111.  567,  120  N.  E,  492,  3  W,  C.  L 
J.  30. 

54.  Boggess  v.  .Indus.  Ace.  Comm.,  176  Gal.  534,  169  Pac.  75,  1  W.  C.  L  J 
293,  15  N.  C.  C.  A.  268;  Shultz  v.  Champion  Welding  &  Mfg.  Co.,  —  N.  Y. 
App.  Div.—  (1921),  130  N.  E.  304. 

55.  Beaudry  v.  Watkins,  191  Mich.   445,  158  N.  W.  16,   15  N.   C.  C.  A. 
254;     Dennis  v.  White  &  Co.,  (1917),  A.  C.  479,  W.  C.  &  Ins.  Rep.  106,  15 
N.  C.  C.  A.    294. 

56.  Ince  v.  Reigate  Education  Committee,  (1916),  W.   C.  &  Ins.   Rep. 
278,  15  N.  C.  C.  A.  250. 

57.  Jibb  v.  Chadwick,  (1915),  W.  C.  &  Ins.  Rep.  342,  15  N.  C.  C.  A.  248. 
518 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    265 

An  employee  of  a  street  railway  company  was  killed  while 
crossing  the  street  from  a  ear  upon  which  he  had  returned  to  th-- 
car  barns.  The  contract  of  employment  did  not  provide  for  con- 
veyance to  and  from  work  on  the  defendant's  cars.  In  deny  in-/ 
compensation  the  court  held  that  the  decedent  was  in  no  way 
connected  with  his  diities  at  the  time  of  the  accident,  and  the 
hazard  to  which  he  was  exposed  was  that  of  the  commonality. 
The  accident  did  not  arise  out  of  or  in  the  course  of  the  employ- 
ment. B8 

Where  JIM  employer,  as  a  part  of  the  contract  of  employment 
t'liriu  lied  <i  conveyance  for  use  of  the  employee  in  going  to  and 
from  work,  and  the  employee  sustained  injuries  during  the  1r;p 
it  was  held  that  the  accident  arose  out  of  and  in  the  course  of 
the  employment,  the  court  saying:  "The  contract  of  employ- 
ment between  the  decedent  and  the  respondents  required  the  de- 
cedent to  work  outside  of  the  place  of  hi/-,  residence,  Willimanti':, 
if  his  employers  should  so  desire;  and  the  respondents  agreed 
that,  while  the  decedent  was  at  work  in  Stafford  Springs,  they, 
as  a  part  of  his  contract  of  employment,  would  convey  the  deced- 
dent  from  his  home  to  his  work  and  back  to  his  home  each  day  in 
an  automobile  provided  by  them.  The  work  began  when  the  deced- 
ent rejirhed  Stafford  Springs;  the  employment  began  when  the  de- 
cedent boarded  the  automobile  at  Willmantic,  and  continued  dur- 
ing the  trip  and  during  the  work,  and  on  the  return  trip  to  Willi- 
inantic.  Transportation  to  and  froMi  his  work  was  incidental  to  his 
employment;  hence  the  employment  continued  during  the  trans 
portation  in  the  same  way  as  during  the  work.  The  injury  occurred 
during  the  transportation,  occurred  within  the  period  of  his  em- 
ployment, and  at  a  place  where  the  decedent  had  a  right  to  be,  and 
while  he  was  doing  something  incidental  to  his  employment,  because 
contemplated  by  it.  The  case  falls  clearly  within  the  construction 
we  h;i\e  heretofore  placed  upon  the  terms  of  the  statute  'arising  in 
the  course  of  employment.'  "M 

68.  McCabe  v.  Brooklyn  Heights  R.  Co.,  177  App.  Div.  107,  162  N.  Y. 
Supp.  741;  Kowalek  v.  N.  Y.  Consol.  R.  Co..  —App.  Div.—  (1920),  128  N. 
E.  888,  7  W.  C.  C.  J.  215. 

r>9.  Swanson  v.  Latham  £  Crane,  92  Conn.  87,  101  Atl.  492;  Kowalek 
v.  N.  Y.  Consol.  R.  Co.,— App.  Div.—,  179  N.  Y.  S.  637,  5  W.  C.  L.  J.  434; 

519 


§  265  WORKMEN'S  COMPENSATION  LAW 

The  applicant  was  going  to  his  place  of  employment  in  a  wag- 
on furnished  by  the  employer,  when  a  shotgun,  carried  for  the  sole 
pleasure  of  another  employee,  exploded  and  so  mangled  the  arm 
of  the  applicant  as  to  necessitate  amputation.  Compensation 
wan  denied,  the  court  holding  that  the  accident  bore  no  relation 
whatsoever  to  the  nature  of  the  employment.  The  employer  did 
not  direct  that  the  gun  be  carried  nor  did  he  know  it  was  loaded. 
The  injured  employee  might  have  objected  to  the  presence  of  the 
gun,  or  at  least  have  seen  that  it  was  unloaded.  Not  doing  so,  he 
cannot  shift  responsibility  to  his  employer.60 

An  auditing  clerk  was  traveling  upon  a  train  of  his  employer 
from  his  usual  place  of  employment  to  an  outside  office  to  cor- 
rect the  books  of  the  latter  office.  During  the  trip  an  accident 
occurred  and  the  clerk  alighted  to  assist,  and  when  boarding  the 
train  he  fell  under  the  moving  train,  sustaining  injuries  which 
resulted  in  his  death.  It  was  held  that  in  alighting  to  render 
assistance,  the  deceased  was  not  performing  any  duty  which 
devolved  upon  him  arising  out  of  his  employment.61 

Where  an  employee  took  his  employer's  horse  and  carriage 
home,  in  going  to  dinner,  which  he  was  not  supposed  to  do. 
as  he  was  to  receive  his  dinner  at  the  mill  where  he  was  working, 
and  while  at  his  home  the  fly  nets  became  entangled  and  he  climb- 
ed out  on  the  shafts  to  straighten  them  when  the  horse  kicked 
and  he  fell  between  the  shafts,  sustaining  injuries  from  which  he 
was  incapacitated  for  a  month,  it  was  held  that  the  accident  did 
not  arise  out  of  and  in  the  course  of  his  employment,  and  compen- 
sation was  denied.62 

An  employee  engaged  as  a  plumber  going  from,  thie  place 
where  he  was  engaged  in  his  employment,  back  to  the  employer's 

Lindstrom  v.  N.  Y.  C.  R.  Co.,  174  N.  Y.  S.  224,  3  W.  C.  L.  J.  514;  also 
Larke  v.  Hancock  Mutual  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320,  12  N. 
C  C.  A.  308,  L.  R.  A.  1916E  584. 

60.  Ward  v.  Indus.  Ace.  Com.  of  Gal.,  175  Cal.  42,  164  Pac.  1123,  15  N. 
C.  C.  A.  223. 

61.  N.  W.  Pac.  R.  Co.  v.  Indus.  Com.,  174  Cal.  297,  163  Pac.  1000,  15  N. 
C.  C.  A.  219. 

62.  Wallace  v.  Duffus,  31  Sheriff  Ct.  Rep.  262   (1915)   (Eng.)    12  N.  C. 
C.  A.  375. 

520 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    265 

shop  in  a  wagon  that  was  furnished  to  him.  He  was  found  serious- 
ly injured  in  the  roadway.  The  commission  awarded  compensation 
on  the  theory  that  the  employee  had  been  thrown  from  the  wagon. 
The  evidence  which  consisted  wholly  of  medical  testimony  was 
to  the  effect  that  the  organs  of  the  body  were  in  normal  condition 
and  that  death  was  due  to  a  hemorrhage.  The  Supreme  Judicial 
Court  reversed  the  decision,  holding  that  there  was  no  evidence  to 
support  such  a  finding,  and  that  it  was  based  merely  upon  conjec- 
ture which  could  not  be  allowed  to  stand.63 

Where  an  employee  insisted  upon  riding  upon  a  load  of  hay 
against  the  positive  objections  of  the  driver  and  contrary  to  the 
rules  of  the  employer,  and  fell  off,  sustaining  injuries,  it  was  held 
that  the  accident  did  not  arise  out  of  and  in  the  course  of  the 
employment.84 

Where  the  contract  of  employment  included  an  agreement  on 
the  part  of  the  employer  to  transport  the  workmen  to  and  from 
work,  and  an  employee  was  injured  by  the  breaking  down  of  the 
automobile  used  as  the  means  of  conveyance,  it  was  held  that  the 
accident  arose  out  of  and  in  the  course  of  employment.65 

The  duties  of  an  employee  of  an  oil  company  were  performed 
partly  at  the  plant,  and  the  remainder  of  the  day  he  was  in  the 
field  looking  after  business  and  collecting  bills,  etc.,  in  an  auto- 
mobile furnished  by  his  employer.  His  employment  began  upon 
reaching  the  plant  in  the  morning  and  terminated  when  he  reached 
home  in  the  evening.  While  on  the  way  to  work  one  morning  his 
rnr  Collided  with  a  trolley  car  resulting  in  serious  injuries  to  him- 
self. It  was  held  that,  because  his  work  did  not  terminate  until 
ho  reached  home  in  the  evening,  it  could  not  be  said  that,  as  re- 
garding coming  to  work  in  the  morning,  he  could  avoid  coming 
under  the  general  rule  pertaining  to  accidents  happening  while  the 

63.  In  re  Sanderson.  224   Mass.  558,  113  N.  E.  355,  12  N.  C.  C.  A.  374. 

64.  Gonzales  v.  Lee  Moor  Contr.  Co.,  2.Cal.  I.  A.  C.  325  (1915)  12  N.  C. 
C.  A.  373. 

Gilbert  v.  Employers'  Llab  Assur.  Corp.  Ltd  ,  1  Mass.  W.  C.  C.  133 
(1913)  12  N.  C.  C.  A.  373. 

521 


§  265  WORKMEN'S  COMPENSATION  LAW 

employee  Avas  coming  to  and  going  from  work.  Compensation 
was  denied.66 

Plaintiff  was  injured  by  the  overturning  of  his  employer's  car 
in  which  he  was  being  transported  from  his  home  to  a  place  where 
he  was  to  work.  The  plaintiff's  duties  as  a  plasterer  required  him 
to  go  from  one  job  to  another  and  upon  this  occasion  the  employer 
told  him  that  certain  materials  were  needed  at  the  next  job  and  he 
\vould  send  a  car  to  transport  him  and  the  materials  to  the  new  job. 
The  board  in  discussing  the  contention  of  defendant  that  the  acci- 
dent did  not  arise  out  of  and  in  course  of  the  employment  in  which 
the  general  rule  that  an  employee,  when  on  his  way  to  work  is  not 
in  the  course  of  his  employment,  was  relied  upon,  said  that  while 
the  rule  might  be  general  it  was  by  no  means  a  universal  rule,  be- 
cause coexistent  with  it  is  another  general  rule  that  where  workmen 
are  employed  to  work  at  a  certain  place  by  the  employer,  as  a  part 
of  their  contract  of  employment,  the  period  of  service  continues  dur- 
ing the  time  of  transportation.  "In  this  case  it  appears  from  the 
evidence,  without  any  dispute,  that  the  plaintiff  was  not  riding  in 
the  automobile  at  his  own  solicitation  or  for  his  own  convenience 
or  purpose,  but  that  he  was  riding  at  the  solicitation  of  the  de- 
fendant under  his  direction  and  for  the  purpose  of  the  furtherance 
of  his  interests.  Under  such  a  state  of  facts,  the  board  holds  that 
the  plaintiff's  injuries  were  caused  directly  by  an  accident  arising 
out  of  and  in  the  course  of  his  employment. ' ' 67 

Compensation  was  denied  for  the  death  of  a  superintendent  caus- 
ed by  the  overturning  of  his  employer's  automobile,  in  which  he 
was  riding  to  work.  The  automobile  of  the  superintendent  was 
broken  and  he  asked  permission  to  ride  with  the  contractor  in  the 
latter 's  car.  It  was  held  that  there  was  no  evidence  to  take  the 
case  out  of  the  general  rule  that  accidents  on  the  way  to  and  from 
work  are  not  compensable.68 

Where  an  employer  furnished  his  own  wagon  to  transport  his 
employees  from  the  city  to  the  place  of  employment  and  the  horse 

66.  Zbinden  v.  Union  Oil  Co.  of  California,  2  Cal.  Ind.  Ace.  Com.  590 
(1915)  12  N.  C.  C.  A.  371. 

67.  Yeargin  v.  Bode,  Ind   I.  Bd.  No.  62,  1916,  12  N.  C.  C.  A.  371. 

68.  Sampo  v.  Yellow  Aster  Mining  and  Milling  Co.,  2  Cal.  I.  A.  C.  530 
(1915)  12  N.  C.  C.  A.  370. 

522 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   265 

ran  away  injuring  one  of  the  employees,  it  was  held  that  the  acci- 
dent arose  out  of  and  in  the  course  of  the  employment.  The  com- 
mission saying  that  the  moment  the  employee  stepped  into  the 
employer's  conveyance  he  was  on  the  premises  within  the  meaning 
of  the  Compensation  Act.89 

An  employee  fell  off  of  one  of  his  employer's  wagons  on  which 
he  was  riding  to  work  and  died  as  the  result  of  the  injuries  thereby 
sustained.  The  employer  did  not  furnish  transportation  to  its 
employees  in  going  to  and  from  work.  The  employee  had  not 
reported  for  work  at  the  time  the  accident  occurred.  It  was  held 
that  the  injury  was  not  sustained  in  the  course  of  the  employment.70 

A  bricklayer  refused  to  work  unless  a  conveyance  was  furnished 
to  and  from  the  depot,  so  the  employer  agreed  to  furnish  a  truck. 
While  making  a  trip  to  the  depot  the  truck  went  into  the  ditch 
and  claimant  was  thrown  out  and  injured.  The  Court  of  Appeals 
said:  "The  Industrial  Commission  properly  held  that  the  injuries 
arose  out  of  and  in  the  course  of  Littler 's  employment.  The  ve- 
hicle was  provided  by  the  employer  for  the  specific  purpose  of 
carrying  the  workmen  to  and  from  the  place  of  the  employment  in 
order  to  secure  their  services.  The  place  of  the  injury  was  brought 
within  the  scope  of  the  employment  because  Littler  when  he  was 
injured  was  'on  his  way  *  *  *  from  his  duty  within  the 
precincts  of  the  company.  *  *  *  The  day's  work  began  when 
he  entered  the  automobile  in  the  morning  and  ended  when  he  left 
it  in  the  evening.  The  rule  is  well  established  that  in  such  cases 
compensation  should  be  awarded."71 

A  workman  employed  in  the  canal  zone  was  injured  while  riding 
home  from  work  on  a  labor  train.  It  was  held  that  he  was  injured 
in  tli»i  course  of  his  employment.72 

Where  an  employee  was  injured  while  driving  his  employer's 
wagon  back  to  the  place  of  employment  after  making  a  deli\ 

69.  Oldham  v.    Southwestern  Surety  Co.,  1  Cal.   I.  A.  C.  D.  (1914)  7,  7 
N.  C.  C.  A.  426. 

70.  In  re  Schmitt  Ohio  Ind.  Com.,  (1914),  7  N.  C.  C.  A.  415. 

71.  Littler  v.  Geo.  A.  Fuller  Co..  223  N.  Y.  369.  119  N.  E.  554,  16  N.  C. 
C.  A.  901. 

In  re  Claim  of  William  Gerow,  Op.  bol.  Dep.  C.  &  L.  (1915),  282. 

523 


§  265  WORKMEN'S  COMPENSATION  LAW 

for  his  employer,  it  was  held  that  the  injury  resulted  from  an  ac- 
cident arising  out  of  and  in  the  course  of  the  employment.73 

An  employee  engaged  to  load  and  unload  a  barge  was  drowned 
while  riding  on  the  barge  to  the  place  where  it  was  to  be  unloaded. 
It  was  held  that  the  accident  arose  out  of  the  employment.74 

Where  the  contract  of  employment  entitled  a  waitress  to  ride 
in  her  employer's  hotel  bus  while  on  personal  errands  during  her 
off  hours  and  she  was  injured  by  the  negligence  of  the  chauffeur 
while  returning  with  him  to  report  for  duty,  such  injury  did  not 
arise  in  her  employment,  so  as  to  make  her  and  the  chauffeur 
fellow  servants  and  require  her  to  proceed  under  the  compensa- 
tion law.75 

Where  a  boy  left  his  work  and  took  a  government  skiff  to  go 
across  a  river  for  some  reason  unknown  to  anyone  but  himself,  it 
was  held,  in  the  absence  of  any  evidence  to  the  contrary,  that  he 
was  doing  something  incidental  or  necessary  to  his  occupation  and 
that  the  accidental  injury  which  he  suffered  arose  out  of  and  in 
the  course  of  his  employment.76 

A  section  hand  was  injured  when  he  jumped  from  a  burning 
car  while  returning  to  work.  The  car  was  furnished  by  the  em- 
ployer as  a  means  of  conveying  his  workmen  to  their  place  of 
work.  It  was  held  that  the  accident  arose  out  of  and  in  the  courts 
of  the  employment.77 

Section  hands,  who  are  furnished  handcars  for  transportation 
to  and  from  work,  sustaining  injuries  while  enroute,  even  though 
the  homeward  trip  is  begun  after  the  day's  working  hours  are 
over,  are  still  within  the  course  of  their  employment.78 

73.  White  v.   East  St.  Louis   Ry.  Co.,  211  111.  App.   14,  17  N.    C.  C.  A. 
938. 

74.  Rideout  Co.  v.  Pillsbury,  173  Cal.  132,  159  Pac.  435,  12  N.  C.  C.  A. 
1032. 

75.  Roth  v.  Adirondack  Co.,  183  N.  Y.  S.  717,  6  W.  C.   L.  J.  557. 

76.  Re  Walter  Webb,  Op.  Sol.  Dep.  L.  336. 

77.  Potts  v.  Lehigh  Valley  R.  Co.,  4  N.  Y.  St.  Dep.  Rep.  421. 

78.  Cicalese  v.  Lehigh    Valley  R.  Co.,     69  Atl.  166,     75  N.  J.  L.   897; 
Arkadephia  Lbr.  Co.  v.  Smith,  78  Ark.  505,  95  S.  W.  800;     Wilson  v.  Ban- 
ner Lbr.  Co.,  32  So.  460,  108  La.  590. 

524 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPJXDYMENT.        §    265 

Where  a  farm  laborer  was  permitted  to  use  a  horse  of  his  em- 
ployer to  take  his  personal  belongings  to  the  place  of  his  employ- 
er, and  the  horse  became  frightened  by  a  motor  and  the  man  was 
seriously  injured,  compensation  was  denied,  the  court  holding 
that  he  was  using  the  horse  merely  as  a  license,  and  that  when  an 
employer  permits  an  employee  to  ride  in  his  conveyance  without 
any  obligation  on  his  part  to  do  so  the  employer  is  not  liable  i~>r 
injuries  received  on  the  trip.79 

Where  an  employee  at  his  request  was  furnished  a  bicycle  to 
ride  to  and  from  work,  and  was  killed  when  he  collided  with  a 
motor  car  on  his  way  home,  it  was  held  that  the  accident  did  rot 
arise  out  of  the  employment,  even  though  the  employee  would 
not  accept  the  employment  unless  provided  with  a  bicycle.80 

Deceased  was  killed  by  a  current  of  electricity  received  from 
a  third  rail  while  waiting  to  take  a  train  home.  "The  deceased 
was  entitled  to  journey  from  his  work  free  of  charge  upon 
the  cars  of  the  appellant,  and  while  so  traveling  would  have 
been  in  the  course  of  his  employment,  Russell  v.  H.  R.  R.  R.  Co , 
17  N.  Y.  134;  Ross  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  5  Hun,  488;  Vick 
v.  N.  Y.  C.  &  H.  R.  R.  Co.,  95  N.  Y.  267,  47  Am.  Rep.  36;  Mo- 
Laughlin  v.  Interurban  R,  R.  Co.,  101  App.  Div.  134,  91  N.  Y. 
Supp.  883.  The  deceased  was  also  entitled  to  a  reasonable  oppor- 
tunity, after  his  work  was  done,  to  remove  himself  from  the  prem- 
ises of  his  employer.  Pope  v.  Merritt  &  Chapman  Derrick  & 
Wreckage  Co.,  177  App.  Div.  69,  163  N.  Y.  Sup.  655;  Bylow  . 
St.  Regis  Paper  Co.,  179  App.  Div.  555,  166  N.  Y.  Supp.  874.  The 
10  minutes,  which  elapsed  between  the  moment  when  he  gave  in 
his  time  and  the  moment  of  the  accident,,  was  a  reasonable  time 
during  which  to  stay  upon  the  premises  of  his  employer  waiting 
to  take  the  next  train  home.  Therefore,  whether  the  accident  hap- 
pened while  the  plaintiff  was  thus  waiting,  or  after  his  homeward 
journey  had  begun,  he  was  in  either  case,  under  the  authorities 

79.  Whitefield  v.  Lambert,   (1915),  8  B.  W.  C.   C.  91.  12  N.    C.  C.    \ 
905;     Whltebread  v.  Arnold,    (1908),    99  L.  T.  103,    I  B.  W.  C.  C.  317; 
Nolan  v.  Porter  &  Sons,  (1909),  2  B.  W.  C.  C.  106;     Henson   v.  Stand- 
ard Oil  Co.,  1  Cal.  Ind.  A.  C.  part  2,  383,  12  N.  C.  C.  A.  379. 

80.  Edwards  v.  Wingham  Agri.  Implmts.  Co.,  (1913),  6  B.  W.  C.  C.  511. 

525 


§  265  WORKMEN'S  COMPENSATION  LAW 

cited,  unless  guilty  of  some  affirmative  act  removing  him  there- 
from, still  in  the  course  of  his  employment  when  death  over- 
took him.  The  case  was  made  one  of  a  continuing  employment, 
so  that  the  burden  of  proving  a  cessation  thereof  fell  upon  the 
appellant.  That  burden  was  not  successfully  borne.  Upon  the 
question  whether  the  accident  arose  out  of  the  employment  it  is 
sufficient  to  cite  authority  for  the  proposition  that  accidents  oc- 
curring to  employees  while  traveling  to  and  from  their  work  in  an 
automobile  provided  by  their  employer  arise,  not  only  in  the 
course  of  the  employment,  but  from  hazards  incident  thereto. 
Matter  of  Little  v.  Fuller  Co.,  223  N.  Y.  369,  119  N.  E.  554. 
Therefore  I  think  the  award  should  be  affirmed."81 

The  court  in  the  syllabus  to  a  recent  Louisiana  case  said : ' '  Where, 
under  a  contract  of  employment,  an  employee  is  carried  forth  and 
back,  on  a  working  train  and  is  under  the  orders  of  his  foreman, 
and  is  paid  from  the  time  that  he  boards  the  train  in  the  mornings, 
until  his  return  to  the  starting  point,  and  detrainment,  in  the  even- 
ing, and  where,  upon  a  particular  occasion,  the  train  is  stopped 
upon  the  return  trip  and  he  gets  off  and  renders  a  service  required 
by  the  foreman,  and,  being  ordered  to  get  on  again,  loses  his  life 
in  the  attempt  so  to  do,  his  parents  in  default  of  wife  or  child, 
become  entitled,  under  Act  No.  243  of  1916,  amending  and  re- 
enacting  section  8  of  Act.  No.  20  of  1914,  to  recover  compensation 
equal  to  50  per  cent,  during  300  weeks,  of  the  wages  that  he  was 
receiving  at  the  time  of  his  death,  and  that,  notwithstanding  that 
the  accident  may  have  been  attributable  to  the  decedent's  own 
negligence,  or  may  have  resulted  from  a  risk,  which  under  the 
general  law  of  master  and  servant  he  might  be  held  to  have  assum- 
ed."82 

81.  Kowalek  v.  N.  Y.  Consolidated  R.  Co.,  (Dec.  (1919),  179  N.  Y.  S. 
637,  5  W.  C.  L.  J.  434  10  App.  Div.  160;     Lannon  v.  Inter-borough  Rapid 
Transit  Co.,  184  N.  Y.  S.  588,  7  W.  C.  L.  J.  90;     Indian  Creek  Coal  Mining 
Co.  v.   Wehr,  — Ind.—  (1920),  128  N.  E.  715,  7  W.  C.  L.  J.  47;     Harrison 
v.  Cent.  Const.   Corp.,   — Md.    App.—  ,    108  Atl.  874,    5  W.  C.  L.  J.  534. 

82.  Farris  v.  Louisana  Long  Leaf  Lbr.  Co.,  —  La.  — ,  86  So.  670,  7  W. 
C'.  L.  J.  292. 


526 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   266 

Employees  who  rode  on  a  truck  going  a  different  way  than  the 
one  upon  which  they  were  supposed  to  ride  were  not  injured  in 
the  course  of  their  employment.83 

Death  was  not  due  to  an  accident  arising  out  of  the  employment, 
where  the  day's  work  had  terminated,  before  deceased  boarded  a 
boat,  chartered  at  the  expense  of  the  government,  for  the  purpose 
of  leaving  the  yards,  even  though  the  place  of  his  employment 
could  not  be  reached  otherwise  than  by  boat,  since  the  contract 
of  employment  did  not  contemplate  that  the  time  consumed  in 
going  to  and  coming  from  work  should  be  included  in  the  day's 
work.84 

As  a  general  rule  an  injury  suffered  by  an  employee  while  going 
to  or  returning  from  work  does  not  arise  out  of  the  employment. 
An  injury  sustained  while  riding  to  the  place  of  employment  in  a 
conveyance  furnished  by  the  employer  in  compliance  with  one  of 
the  terms  of  the  contract  of  employment,  for  the  use  of  employees, 
but  in  which  the  workman  was  not  directed  or  required  to  ride, 
does  not  arise  out  of  the  employment,  where  it  appears  that  the 
injury  was  received  before,  and  not  during,  the  hours  of  the  work- 
man's service,  when  his  employer  had  no  control  over  him  and  be- 
for  the  beginning  of  the  period  covered  by  his  wages.85 

§  266.  While  Walking  to  and  from  Work.— Where  a  railroad 
employee,  who  had  neglected  to  bring  liis  dinner  with  him  as  was 
his  usual  custom,  received  permission  to  go  home  for  his  dinner, 
and  in  proceeding  along  the  right  of  way  was  struck  and  killed 
by  a  train,  it  was  held  that  the  relationship  of  employer  and  em- 
ployee had  ceased,  and  that  the  accident  was  not  one  arising  out 
of  or  in  the  course  of  his  employment.  The  employee  was  on  a 
mission  of  his  own  and  the  fact  that  he  was  on  the  premises  of 

83.  United    Disposal  &    Recovery  Co.  v.   Indus.  Comm.;  United   Engi- 
neering Co.  v.  Same,  (two  cases),  —  111.  —  (1920),  126    N.  E.     183,  6  W. 
C.  L.  J.  682. 

84.  Rausch  v.  Standard  Shipbuilding  Corp.,  — N.  Y.  —  (1920),  181  N.  Y. 
513,  6  W.  C.  L.  J.  92. 

85.  Nesbitt  v.  Twin  City  Forge  &  Foundry  Co.,  —Minn.—   (1920),   177 
N.  W.  131,  6  W.  C.  L.  J.  66;     Strohl  v.  Eastern  Penn.  Rye.  Co.,  — Pa.— 
1921,  113  Atl.  62. 

527 


§  266  WORKMEN'S  COMPENSATION  LAW 

his  employer  was  immaterial  as  this  course  was  of  his  own  choosing 
in  preference  to  a  road  running  in  the  same  direction.  The  burden 
of  proof  resting  upon  the  party  seeking  to  show  the  connection 
between  the  employment  and  the  accident  was  not  discharged.80 

The  master  of  a  schooner  was  returning  to  his  boat  from  ashore, 
where  he  went  on  business  of  the  ship,  when  he  stepped  upon  an 
orange  peeling  and  fell,  and  permanently  injured  his  hip.  It  was 
held  that,  while  the  injury  arose  in  the  course  of  the  employment, 
it  did  not  arise  out  of  the  employment,  and  compensation  was  de- 
nied.87 

An  employee  was  struck  and  injured  by  a  train  when  going  to 
his  bunk  house.  There  were  two  ways  of  reaching  the  bunkhouse, 
one  of  which  was  over  the  right  of  way  which  the  employee  chose 
of  his  own  volition.  It  was  held  that  this  accident  came  within  the 
settled  rule  "that  injuries  sustained  by  an  employee  while  going 
to  or  returning  from  his  day's  work,  when  there  is  no  contract  of 
transportation,  are  not  to  be  regarded  as  arising  out  of  or  received 
in  the  course  of  his"  employment. '  '88 

Nor  could  the  employer  confer  a  right  upon  the  employee  to  use 
tracks  over  which  he  had  no  control,  where  the  employee  was  not 
paid  for  the  time  required  to  reach  his  home.89 

An  employee,  while  walking  down  a  railroad  on  his  way  to  the 
place  of  his  employment,  was  injured  by  a  train  striking  him. 
This  was  the  usual  route  to  work,  and  the  employee's  time  began 
from  the  time  he  left  home.  It  was  held  that  the  accident  occurred 
when  the  deceased  was  on  duty  in  the  line  of  his  employment,  and 
that  the  accident  arose  out  of  the  employment.90 

A  car  inspector  was  killed  while  crossing  the  track  of  another 
company.  His  time  in  emergency  call  began  from  the  time  he  left 

86.  Hills  v.  Blair  et  al.,  182  Mich.  20,  148  N.  W.  243,  7  N.  C.  C.  A.  409. 

87.  Chapman  v.  John  Pearn  (owners  of),  9  B.  W.  C.  C.  224,  12  N.  C. 
C.  A.  368. 

88.  Guastelo  v.  Mich.  Cent.   R.  Co.,  194  Mich.  382,  160   N.  W.   484,  15 
N.C.  C.  A.     241;  Orsinie  v.  Tommce,  —  Conn.  —  (1921),  113    Atl.  924; 
Mason  v.  Alexandre  et  al.,  —  Conn.    --  (1921),  113  Atl.  925. 

89.  Bell's  Case,  —  Mass.  —  (1921),  130  N.  E.  67. 

90.  Porritt  v.  Detroit  United  Ry.,  199  Mich.  200,  165  N.  W.  674,  1  W.  C. 
L.  J.  397,  15  N.  C.  C.  A.  241. 

528 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMPLOYMENT.        §    266 

home  and  continued  until  he  returned.  On  the  occasion  when  the 
accident  happened  he  was  responding  to  an  emergency  call.  In 
holding  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment,  the  court  said:  "The  decedent's  work  under  the 
arrangement  was  emergency  work,  and  its  very  character  was  such 
as  to  require  him  to  report  for  duty  at  the  earliest  moment  possible, 
and  that  he  was  doubtless  expected  to  take  the  shortest  and  most 
direct  route,  though  such  route  might  expose  him  to  dangers  not 
present  in  one  more  circuitous,  and,  therefore,  that  his  employer 
should  be  held  to  have  anticipated  such  an  accident  as  happened."81 

Compensation  was  denied  a  widow  for  the  death  of  her  hus- 
band, wiio  was  killed  on  his  way  home  from  work.  The  employee 
chose  to  travel  on  the  railroad  instead  of  other  ways  which  led  in 
the  same  direction.  The  employer  allowed  pay  for  the  time  neces- 
sary in  coming  to  and  going  from  work.  It  was  held  that  the  acci- 
dent did  not  arise  out  of  and  in  the  course  of  the  employment, 
there  being  no  evidence  to  indicate  an  agreement  between  the  rail- 
road company  and  the  defendant  as  to  the  use  of  the  railroad  as  a 
foot  path  by  the  letter's  employees.02 

Where  an  employee  was  injured  while  going  to  work,  walk- 
ing along  a  railroad,  compensation  was  denied  in  the  lower  court, 
the  judge  holding  that  by  walking  along  the  railroad,  when  there 
were  two  less  hazardous  paths,  the  employee  added  peril  to  his  em- 
ployment. On  appeal  it  was  held  that  such  choice  on  the  part  of 
the  employee  did  not  make  the  accident  one  not  arising  out  of  the 
employment.03 

Compensation  was  denied  for  the  death  of  an  employee  who  was 
killed  while  passing  along  a  railroad  track,  not  in  the  "usual 
passage  way  of  8  ft.  in  width  between  the  tracks,"  evidently  going 

91.  In  re  Maroney,  64  Ind.  App.,  — ,  118  N.  E.  134,  15  N.  C.  C.  A.  242, 1 
W.    C.  L.  J.  356. 

92.  Whittall  v.  Staveley  Iron  &  Coal  Co.,  Ltd.,  (1917),  W.  C.  ft  Ins. 
Rep.  202,  15  N.  C.  C.  A.  243;  In  re  Fumiciello,  219  Mass.  488,  107  N.  E. 
349,  15  N.  C.  C.  A.  245;     Hadwin  v.  Shepherd,  (1915),  W.  C.  &  Ins.  Rep. 
503, 15  N.  C.  C.  A.  245;     Mazeffe  v.  Kan.  City  Terminal  Ry.  Co.,  —Kan.—, 
(1920),  189  Pac.  917,  6  W.  C.  L.  J.  159. 

93.  Fox  v.  Rees  &  Kirby,  Ltd.,  1916  W.  C.  &  Ins.  Rep.  339,  15  N.  C.  U. 
A.  248. 

529 

W.  C.— 34 


§  266  WORKMEN'S  COMPENSATION  LAW 

to  or  from  work,  and  it  was  held  that  the  accident  did  not  arise  out 
of  decedent's  employment.  It  not  having  been  shown  that  his  em- 
ployment required  his  presence  on  the  track.94 

An  employee,  who  was  engaged  in  work  in  an  ice  house,  was 
drowned  on  his  way  home  when  he  was  crossing  the  ice  pond,  which 
was  the  most  direct  route  to  his  home.  The  pond  was  on  the 
premises  of  the  employer  and  under  his  control.  In  affirming  a 
judgment  which  found  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment,  the  court  said:" While  the  employee's 
work  for  the  day  had  been  finished  and  he  was  on  his  way  home 
at  the  time  of  the  fatal  accident,  still  it  is  settled  that  an  injury 
to  a  workman  may  arise  out  of  and  in  the  course  of  his  employment 
even  if  he  is  not  actually  working  at  the  time  of  the  injury."  The 
court  said  that  the  finding  that  the  pond  was  in  the  control  of 
the  employer  and  that  the  crossing  over  it  on  the  ice  was  "the 
reasonable  and  customary  way"  for  deceased  to  reach  his  home, 
and  that  he  and  other  employees  who  lived  in  the  same  direction 
"crossed  it  this  way  regularly,"  warranted  the  further  finding 
that  the  injury  occurred  in  the  course  of  the  employment.95 

Where  an  employee,  who  was  allowed  to  take  work  home,  but 
was  not  required  to  do  so,  sustained  injuries,  by  falling  on  ice  when 
attempting  to  dodge  an  automobile  while  waiting  to  board  a  street 
car  on  his  way  to  work,  compensation  was  denied,  the  court  holding 
that  the  accident  did  not  arise  out  of  nor  in  the  course  of  the 
employment.90 

Where  an  employee  slipped  and  fell  while  walking  from  one  place 
of  employment  to  another  it  was  held  that  the  accident  arose  out 
of  and  in  the  course  of  the  employment.  The  court  said:  "It 
is  enough  to  entitle  a  workman  to  compensation  if  he  can  say  that 
on  the  occasion  when  he  was  injured  by  a  peril  of  the  street 

94.  Siemientkowski  v.  Berwind  White  Coal  Co.,  (N.  J.  L.)   92  Atl.  909, 
14  N.  C.  C.  A.  132. 

95.  In  re  Stacy,  225  Mass.  174,  114  N.  E.  206,  15  N.  C.  C.  A.  244. 

96.  Indus.  Comm.  of  Colo.  v.  Anderson,  (Colo.),  169  Pac.  135,  1  W.  C. 
L.  J.  305;     In  re  Killian  Delebar,  2nd  A.  R.  U.  S.  C.  C.  266;     In  re  Alva 
J.  Norman,  2nd  A.  R  U.  S.  C.  C.  276. 


530 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    266 

his  duty  to  his  employer  took  him  to  that  street,  though  the  occa- 
sion may  have  been  of  a  rare  and  exceptional  character.87 

Deceased  was  employed  as  a  procurer  of  samples  of  fat  for  his 
employer.  It  was  customary  upon  such  occasions  for  him  to  pro- 
cure samples,  and  if  he  had  time,  to  return  to  the  plant  before 
6  p.  m.,  and  if  he  did  not  have  time,  to  bring  them  the  following 
morning.  On  the  evening  of  the  accident  causing  deceased's  death 
he  had  procured  samples  and  proceeded  towards  his  home,  when 
he  was  struck  by  a  street  car  and  killed.  The  court  held  that  at 
the  time  of  the  accident  deceased  was  not  performing  any  mission 
for  his  employer.  He  had  completed  his  work  for  the  day.  It  was 
true  that  he  had  in  his  possession  samples  to  be  taken  to  the 
plant  in  the  morning;  but  if  he  did  retain  possession  of  the  sam- 
ples at  the  time  of  the  accident  he  did  so  for  his  own  convenience, 
and  that  fact  did  not  contribute  in  any  way  to  his  injury.  The 
accident  did  not  arise  out  of  and  in  the  course  of  the  employ- 
ment.98 

A  workman  injured  on  a  highway  on  his  way  to  work  is  not 
injured  in  the  course  of  his  employment.09 

A  watchman,  returning  from  work,  was  injured  after  alighting 
from  a  labor  train  and  while  walking  along  the  railroad  track, 
There  was  no  ttther  means  of  reaching  a  highway  leading  to  his 
home.  It  was  held  that  he  was  injured  in  the  course  of  his  em- 
ployment.1 

An  employee  in  the  reclamation  service  was  killed  while  walking 
along  a  railroad  track  when  a  train  of  that  service  struck  him, 
It  was  held  that  the  accident  arose  out  of  the  employment.2 

"The  principal  question  here  argued  is  whether  Miller's  acci- 
dent arose  out  of  and  in  the  course  of  his  employment.  His  work 

97.  White  v.  W.  ft  T.  Avery,  Ltd.,  1915  W.  C.  &  Ins.  Rep.  594,  2  Sc.  L. 
Times  374.  15  N.  C.  C.  A.  251. 

98.  N.  K.  Fairbanks  Co.   v.  Industrial   Comm.,  285  111.    11,   120  N.  E. 
457,  17  N.  C.  C.  A.  948. 

99.  In  re  Claim  of  fiilkey.  Op.  Sol.  Dep.  C.  &  L.  (1915),  288;  In  re  Harry 
Scherer,  3rd  A.  R.  U.  S.  C.  C.  176. 

1.  Op.  Sol.  Dep.  C.  ft  L.  (1915),  309. 

2.  In  re  claim  of  J.  Schlechter,  Op.  Sol.  Dep.  C.  ft  L.   (1916),  331. 

531 


§  266  WORKMEN'S  COMPENSATION  LAW 

in  the  roundhouse  was  completed  at  4  o'clock,  and  the  evidence 
tends  to  show  that  he  could  take  a  street  car  to  his  home  and  thus 
avoid  walking  down  the  tracks  in  the  yard  of  defendant  in  error, 
but  it  also  appears  by  the  weight  of  the  evidence  in  the  record  that 
there  was  a  custom  on  the  part  of  many  of  the  employees  to  go 
down  the  tracks  to  take  a  train,  and  that  this  custom  was  known 
to  the  officials  of  the  railway  company  who  were  in  charge  of  the 
work  at  the  roundhouse.  This  court  has  held  that  an  injury  oc- 
curring to  an  employee  while  on  his  way  to  or  from  his  work  may 
or  may  not  arise  out  of  and  in  the  course  of  the  employment,  de- 
pending upon  the  special  facts  of  the  particular  case.  Fairbank 
Co.  v.  Industrial  Com.,  285  111.  11,  13,  120  N.  B.  457,  458.  The 
court  said  in  that  case: 

'When  work  for  the  day  has  ended  and  the  employee  has  left 
the  premises  of  his  employer  to  go  to  his  home  the  liability  of 
the  employer  ceases,"  unless  after  leaving  the  plant  of  the  em- 
ployer the  employee  is  incidentally  performing  some  act  for  the  em- 
ployer under  his  contract  of  employment.' 

''It  is  clear  from  his  record  that  the  accident  occurred  on  the 
premises  of  the  employer,  as  that  word  is  ordinarily  understood. 
One  of  the  controlling  factors  in  determining  the  question  here 
under  consideration  is  whether  the  employee  at  the  time  of  the 
accident  was  within  the  orbit,  area,  scope,  or  sphere  of  his  em- 
ployment. 

"The  usual  rule  followed  in  workmen's  compensation  eases  ap- 
pears to  be  that  a  man 's  employment  does  not  begin  until  he  has 
reached  the  place  where  he  is  to  work  or  the  scene  of  his  duty  and 
does  not  continue  after  he  has  left  the  premises  of  his  employer 
(Bradbury  on  Workmen's  Comp.  [3d  Ed.]  468),  and  it  is  ordi- 
narily held  that  if  an  employee  is  injured  on  the  premises  of  the 
employer  in  going  to  or  from  work  he  is  entitled  to  compensation 
for  such  injuries  (.1  Honnold  on  Workmen's  Comp.,  Par.  122; 
Bradbury  on  Workmen's  Comp.  [3d  Ed.],  473,  and  authorities 
cited).  The  employment  is  not  limited  to  the  exact  moment  when 
the  workman  reaches  the  place  where  he  begins  his  work  or  to  the 
moment  when  he  ceases  that  work.  It  necessarily  includes  a  rea- 
sonable amount  of  time  and  space  before  and  after  ceasing  actual 
employment,  having  in  mind  all  the  circumstances  connected  with 
532 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    266 

the  accident.  Boyd  on  workmen's  Comp.  Par.  486.  Whether 
an  employee  in  going  to  or  from  the  place  of  his  employment  is 
in  the  line  of  his  employment  will  depend  largely  on  the  particular 
facts  and  circumstances  of  each  case.  There  must  necessarily  be  a 
line  beyond  which  the  liability  of  the  employer  cannot  continue, 
and  the  question  where  that  line  is  to  be  drawn  has  been  held  to  be 
usually  one  of  fact.  Elliott  on  Workmen's  Comp.  Acts  (7th  Ed.)  41. 
The  area  of  an  employee's  duty  is  much  more  readily  ascertained  in 
some  cases  than  in  others.  Where  the  premises  are  confined  to  a 
single  building  or  plant  or  inclosure  it  is  usually  held  that  the 
accident  occurring  on  the  premises  arises  out  of  and  in  the  course 
of  the  employment,  but  when  the  accident  occurs  on  the  right  of 
way  of  a  railroad,  and  the  right  of  way  extends  for  miles  with 
the  main  track  line  and  for  a  considerable  distance  on  the  switch 
tracks  or  in  the  yards,  it  is  much  more  difficult  to  decide.  In 
the  recent  case  of  Schweiss  v.  Industrial  Com.,  292  III.  90,  126 
N.  E.  566,  this  court  had  occasion  to  review  numerous  authorities 
bearing  on  this  question,  and  the  cases  there  cited  will  illustrate 
how  different  courts  have  viewed  this  question.  We  will  not  attempt 
here  to  refer  to  those  cases  in  detail,  but  simply  cite  the  opinion 
which  shows  the  bearing  that  such  cases  have  on  the  question  here 
involved.  Some  additional  authorities,  however,  may  help  to  throw 
light  on  the  question. 

"An  accident  happened  to  a  workman  employed  in  one  of  the 
departments  of  the  employer's  oil  works  when  he  was  going  to  his 
work  on  a  path  on  the  employer's  premises  provided  for  'the  use 
of  the  workmen,  although  at  the  time  of  the  accident  the  nearest 
building  belonging  to  the  works  was  80  yards  away  and  his  own 
working  place  was  300  yards  distant.  It  was  found  that  the 
accident  arose  out  of  and  in  the  course  of  the  employment.  Nicol 
v.  Young's  Paraffin  Oil  Co.,  52  S.  L.  354. 

"An  accident  to  miner  was  held  to  arise  out  of  and  in  the  course 
of  his  employment  where,  while  proceeding  above  the  ground  to 
his  work,  he  fell  and  broke  his  leg  on  the  rails  belonging  to  the 
employer  leading  to  the  doorway  of  a  horizontal  passage  by  which 
the  mine  was  entered,  at  a  spot  some  13  feet  from  the  doorway. 
Mackensie  v.  Coltness  Iron  Co.,  6  Sess.  Gas.  (5th  Series)  Scot. 
Court  of  Session,  8. 

533 


§  266  WORKMEN'S  COMPENSATION  LAW 

"Where  a  miner  at  the  end  of  his  day's  work  changed  his  clothes, 
and,  still  carrying  a  miner's  lamp,  started  towards  the  bottom  of 
the  shaft  with  the  intention  of  ascending  to  the  top,  and  about 
200  feet  from  the  room  where  he  had  been  at  work  and  about  half 
a  mile  from  the  bottom  of  the  shaft  one  of  his  eyes  was  put  out  by 
coming  in  contact  with  a  piece  of  slate  hanging  from  the  roof,  it 
was  held  that  the  accident  arose  out  of  and  in  the  course  of  his 
employment.  Sedlock  v.  Carr  Coal  Co.,  98  Kan.  680,  159  Pac.  9, 
L.  R.  A.  1917B,  372. 

"An  employee  who  was  injured  while  going  down  in  an  elevator 
in  the  building  of  his  employer  after  the  whistle  blew  to  cease 
work  was  held  to  be  injured  in  the  course  of  his  employment. 
Nelson  v.  Aetna  Life  Ins.  Co.,  12  N.  C.  C.  A.  660,  note. 

"A  stationary  engineer,  after  the  whistle  had  sounded  for  quit- 
ting work  for  the  day,  jumped  over  a  pile  of  lumber  to  make  a 
short  cut  out  of  the  factory  and  fell,  breaking  his  ankle.  It  was 
held  that  the  injury  arose  out  of  the  employment.  Bennett  v. 
Russell  &  Sons  Co.,  12  N.  C.  C.  A.  659,  note 

"A  laborer  at  work  in  a  field  was  stopped  by  a  threatened  storm, 

and  while  going  to  his  home  across  his  employer 's  land  to  avoid  the 

storm  he  stepped  on  a  plank  and  sustained  an  injury.    It  was  held 

that  the  accident  arose  out  of  and  in  the  course  of  his  employment. 

Taylor  v.  Jones,  1  B.  W.  C.  C.  3. 

"This  court  held  in  Stephens  Engineering  Co.  v.  Industrial  Com., 
290  111.  88,  124  N.  E.  869,  that  an  injury  to  an  employee  caused  by 
a  fall  from  a  fire  escape  which  he  attempted  to  descend  for  the  pur- 
pose of  reporting  to  the  timekeeper  at  the  close  of  his  day's  work 
arose  out  of  and  in  the  course  of  his  employment,  where  it  was  cus-_ 
tomary  for  the  workmen  to  use  the  fire  escape  as  a  means  of  descent 
and  such  use  was  known  to  the  employer,  although  there  was  an- 
other way  of  leaving  the  place  of  work  which  the  evidence  tended 
to  show  would  be  safer  than  the  fire  escape. 

"The  great  weight  of  authority  appears  to  be  to  the  effect  that 
if  the  injured  employee  was  on  the  premises  of  the  employer  in 
going  from  his  work,  leaving  within  a  reasonable  time,  and  follow- 
ing the  customary  or  permitted  route  off  the  premises,  the  accident 
would  be  held  to  arise  out  of  the  employment.  Boyd  on  Work- 
men's Comp.  Par.  486.  The  leaving  of  the  premises  where  one  is 
534 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    267 

employed  is  so  closely  connected  with  his  employment  as  to  render 
it  a  necessary  incident  thereto.  It  was  stated  in  Terlecki  v.  Strauss. 
85  N.  J.  Law,  454,  on  page  455,  89  Atl.  1023,  1024 : 

'It  is  a  necessary  implication  of  the  contract  that  the  workman 
shall  come  to  his  work  and  shall  leave  with  reasonable  speed  when 
the  work  is  over.' 

"The  fact  that  the  employee  in  leaving  the  premises  was  follow- 
ing the  usual  and  customary  route  is  ordinarily  considered  of 
weight  in  deciding  that  the  accident  has  taken  place  in  the  course 
of  the  employment.  Bradbury  on  Workmen's  Comp.  (3d.  Ed.) 
473-477;  Harper  on  Workmen's  Comp.,  par.  36.  Beyond  question, 
an  employee  will  generally  be  considered  as  being  within  the  course 
of  employment  when  he  is  going  to  or  from  his  place  of  work 
while  on  the  premises  of  the  employer,  if  he  is  following  the  cus- 
tomary or  permitted  route  in  going  to  and  from  his  work.  It  has 
been  said  that  an  employee  must  not  choose  a  needlessly  dangerous 
path  to  and  from  his  work,  but  that  it  is  not  necessary  for  him 
to  use  the  path  or  place  provided  by  his  master;  that  is, 
enough  that  it  is  customarily  used  for  these  purposes  by  th^ 
workmen,  and  that  its  use  is  not  specifically  forbidden.  Gane  v. 
Norton  Hill  Colliery  Co.,  2  B.  W.  C.  C.  42;  McKee  v.  Great 
Northern  Railway  Co.,  1.  B.  W.  C.  C.  165;  Barnes  v.  Nunnery 
Coal  Co.,  4  B.  W.  C.  C.  43 ;  25  Harvard  Law  Review,  411  and 
cases  cited. 

"As  in  this  proceeding  the  accident  happened  before  the  em- 
ployee reached  the  train  of  the  defendant  in  error  railway  com- 
pany, the  question  whether  he  was  permitted  to  ride  free  has  no 
controlling  force  on  the  question  whether  the  accident  arose  out  of 
and  in  the  course  of  employment.  In  view  of  all  the  circumstances 
in  the  case,  by  the  great  weight  of  authority  as  well  as  by  sound 
reasoning,  we  think  the  conclusion  follows  that  this  accident  arose 
out  of  and  in  the  course  of  Miller's  employment."3 

§  267.  Going  to  and  from  Work  Using  Conveyances  of  Third 
Parties. — A  messenger  boy  was  injun-d  while  riding  on  a  truck 
of  a  third  party.  He  was  furnished  car  fare  when  the  distance  was 
considerable.  On  the  day  of  the  accident  he  was  sent  a  few  blocks, 

3.  Wabash  Ry.  Co.  v.  Indus.  Comm .,  —  111.  — .  128  N.  E.  290.  6  W.  C. 
L.  J.  649. 

535 


§  267  WORKMEN'S  COMPENSATION  LAW 

and  being  in  a  hurry  to  get  back  he  caught  a  passing  truck.  In 
affirming  a  judgment  of  dismissal  the  court  held  that  "plaintiff's 
employment  was  such  that  reasonable  men  could  not  conclude 
that,  as  an  incident  thereto,  it  might  be  expected  that  the  hazard 
of  accidental  injury  from  obtaining  rides  on  passing  vehicles  was 
connected  therewith;"  and  that,  "since  plaintiff  was  provided 
with  car  fare  when  the  messages  were  to  go  beyond  a  certain  dis- 
tance, he  was  to  walk  on  all  other  occasions,  and,  therefore,  when 
he  sought  other  methods  by  which  to  accomplish  his  tasks  he  de- 
parted from  the  scope  or  ambit  of  his  employment,  and  while  so 
doing  was  not  protected  by  the  compensation  act."4 

An  extra  switchman,  who  reported  for  work  and  was  informed 
that  his  services  were  not  needed,  climbed  on  a  moving  freight  train 
for  his  own  convenience  in  going  home  and  was  struck  by  a  viaduct. 
It  was  held  that  the  relation  of  master  and  servant  did  not  exist 
at  the  time  of  the  accident.  Therefore  the  accident  did  not  arise 
out  of  and  in  the  course  of  the  employment.5 

Decedent  was  employed  as  a  foreman.  He  had  completed  one 
job  and  was  ordered  to  another  at  a  different  point  in  the  state. 
Missing  the  regular  stage  he  accepted  the  invitation  of  a  friend 
to  ride,  as  a  guest,  in  an  automobile.  The  automoblie  skidded  and 
turned  over,  Deceased  sustained  injuries  which  resulted  in  his 
death  within  twenty  four  hours  thereafter.  The  court,  in  holding, 
on  appeal,  that  an  award  should  be  made,  said:  "In  the  case  at 
bar  it  was  an  essential  part  of  his  employment  that  the  deceased 
should  travel  from  the  place  where  he  had  installed  one  plant  to 
the  place  where  he  was  to  install  another.  It  is  also  clear  that  he 
adopted  a  reasonable  and  apparently  the  only  facility  for  such 
travel  under  the  circumstances,  and  as  safe  as  any  other  that 
may  have  been  available.  No  case  is  cited  that  adopts  a  different 
rule,  and  we  know  of  none,  as  applied  to  workmen's  compensation 
statutes."6 

4.  State  ex   rel.  Miller  v.   District  Court  of  Hennepin    Co.,   138  Minn. 
334,  164  N.  W.  1012,  15  N.  C.  C.  A.  256,  1  W.  C.  L.  J.  216. 

5.  Michigan   Cent.  R.  Co.   v.  Indus.   Com.  et  al.,    290  111.  503,  125  N.  E. 
278,   (Dec.,  1919)    5  W.  C.  L.  J.  189;     Braley's  Case,  —Mass.—,   (1921), 
129  N.  E.  420. 

6.  Industrial   Commission   of  Colorado  v.   Aetna  Life   Ins.   Co.,  64  Col. 
480,  174  Pac.  589,  17  N.  C.  C.  A.  955,  2  W.  C.  L.  J.  759. 

536 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    267 

An  employee  was  engaged  to  go  from  place  to  place  at  the 
direction  of  his  employer  for  the  purpose  of  setting  up  machinery, 
which  his  employer  sold  On  these  occasions  it  was  discretionary 
with  the  employee  as  to  what  means  of  conveyance  he  would 
select  to  take  him  from  one  place  to  another.  At  the  time  of  the 
accident  he  was  going  to  his  work  in  the  automobile  of  his  son. 
The  automobile  was  upset  and  he  was  seriously  injured.  Com- 
pensation was  awarded  and  the  appellate  court,  in  denying  an 
appeal  and  holding  that  the  accident  did  arise  out  of  and  in  the 
course  of  the  employment,  said  that  the  facts  of  this  case  took  it 
out  of  the  general  rule  contended  for  by  the  employer,  since  in 
this  case  the  particular  destination  to  which  the  employee  was  to 
go  was  not  defined  in  advance,  "but  was  the  subject  of  direction 
from  time  to  time  by  the  employer  to  an  extent  which  rendered 
the  travel  of  the  employee  to  such  place  a  part  of  the  employment 
itself  sufficient  to  bring  him  within  the  category  of  a  traveling 
employee. ' >T 

An  injury  to  an  employee  while  riding  home  in  a  conveyance 
owned  by  a  fellow  employee,  when  transportation  was  not  furnish- 
ed by  the  employer,  does  not  arise  out  of  the  employment.8 

An  employee,  engaged  as  cook  in  the  river  and  harbor  wcrk, 
was  drowned  while  crossing  the  river  in  a  launch  of  a  private 
party  while  on  his  way  to  work.  It  was  held  that  the  accident 
did  not  arise  out  of  and  in  the  course  of  the  employment.8 

A  life  insurance  agent  was  riding  in  an  automobile  of  a  pro- 
spective customer  when  the  automobile  turned  over  and  he  sus- 
tained injuries.  It  was  held  that  the  accident  did  not  arise  out  of 
the  employment.10 

An  employee  injured  while  riding  home  from  work  in  the  truck 
of  another  employee,  over  which  the  employer  exercised  no  control, 
was  not  injured  by  an  accident  arising  out  of  and  in  the  course  of 
the  employment,  since  the  employer  had  not  undertaken  to  furnish 
transportation  to  his  employees.11 

7.  London  &  L.  Indent.  Co.  v.  Indus.  Acci.  Com..  35,  Cal.  App.  681,  170 
Pac.  1074,  16  N.  C.  C.  A.  909,  1  W.  C.  L.  J.  743. 

8.  In  re  Oillig,  Ohio,  I.  C.  1915,  12  N.  C.  1.  A.  388. 

9.  In  re  Claim  of  Aaron  Ware,  Op.  Sol.  Dep.  C.  *  L.   (1915),  334. 

10.  Hewitt  v.  Casualty  Co.  of  America,  225  Mass.  1.  113  N.  E.  572. 

11.  Diaz  v.  Warren  Bros.  Co.,  —  Conn.  — ,  (1920),  111  All.  206.  6  W.  C. 
L.  J.  517. 

537 


§  268  WORKMEN'S  COMPENSATION  LAW 

§  268.  Going-  to  and  from  Work  While  on  Premises  of  Em- 
ployer and  While  Passing  Over  Ways  of  Egress  and  Ingress.— 
Where  a  carpenter  fell  when  attempting  to  descend  from  the  bin 
floor  of  an  elevator,  by  way  of  a  fire  escape,  which  was  used  in  go- 
ing from  his  work  to  the  timekeeper's  office  at  the  close  o£  the 
day's  work,  it  was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment.12 

Compensation  was  allowed  for  the  death  of  a  miner,  who  was 
crushed  between  the  cage  and  the  buntons  of  the  shafts  while 
leaving  the  mine  after  work  hours,  the  court  holding  that  the 
accident  arose  out  of  and  in  the  course  of  the  rinployment.13 

Claimant  had  applied  for  work,  and  was  informed  that  there 
was  no  work,  but  to  call  at  the  office  before  7  :30  the  next  morn- 
ing and  see  if  there  would  then  be  any.  He  was  given,  on  re- 
quest, lodging  and  a  slip  entitling  him  to  supper  and  breakfast. 
He  did  not  report  at  the  appointed  hour,  but  slept  until  8:30; 
and  at  noon,  while  going  from  the  sleeping  car  to  the  place 
where  his  pass  entitled  him  to  get  breakfast,  he  was  struck  and 
injured  while  crossing  the  railroad  tracks.  Reversing  an  award 
in  claimant's  favor,  the  court  held  that  claimant  was  not  in  de- 
fendant's employ  at  the  time  of  the  injury,  and  said  further: 
"Even  if  claimant  was  an  employee  of  the  appellant,  he  "was  not 
acting  in  the  course  of  his  employment  when  injured.  It  is  true 
that  an  employee  is  within  the  protection  of  the  (New  York)  Work- 
men's Compensation  Law  (Consol  Laws  c.  67),  not  only  when 
actually  at  work,  but  also  while  upon  the  premises  of  his  employer 
he  is  going  to  or  from  work,  or  to  or  from  a  meal,  or  wir.ie  at  a 
meal  which  is  had  upon  the  premises  during  a  temporary  interrup- 
tion of  work.  This  claimant  was  not  going  to  or  from  his  work  at 
the  time  of  the  injury,  nor  was  he  going  to  a  meal  during  the 
interruption  of  his  work,  for  he  had  as  yet  not  worked  at  all. 
Finally,  he  was  not  going  to  a  meal  upon  the  premises,  which  he 
was  permitted  to  take  there,  for  his  card  to  the  boarding  house 

12.  Stephens  Engineering  Co.  v.  Indus.   Com.,  290  111.   88,  124  N.   E. 
869,  5  W.  C.  L.  J.  205;     In  Re  Geo.  J.  Wheeler,  2nd.  A.  R.  U.  S.  C.  C.  258. 

13.  Moury  v.  Latham  Coal  &  Mining  Co,  212  111.  App.  508,  18  N.  C.  C. 
A.  1034. 

538 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    268 

was  for  supper  and  breakfast  only,  and  both  these  nu-als  'ie  had 
already  eaten.  He  had  no  right  to  a  noonday  meal  at  the  boarding 
house.  Therefore,  the  claimant,  even  though  an  employee,  was 
not  in  the  course  of  his  employment  when  injured."14 

An  employee  of  a  lumber  company  was  required  to  rem;un  on 
the  premises  and  to  sleep  in  a  bunk  furnished  by  the  employer. 
While  lying  in  the  bunk,  talking  to  a  fellow  employee  in  'he  bunk 
above  him,  a  straw  fell  and  lodged  in  his  throat.  The  court,  in 
in  deciding  that  the  injury  arose  out  of  and  in  the  course  of  the 
employment,  said  that  the  general  rule  under  the  authorities  is 
that  when  the  contract  of  employment  contemplates  tl<at  the  em- 
ployee shall  sleep  upon  the  premises  of  the  employer,  the  employee 
is  considered  to  be  performing  services  growing  out  of  and  incident- 
al to  such  employment  during  the  time  he  is  on  the  premises  of  the 
employer.  Rucker  v.  Read,  39  N.  J.  Law  J.  48 ;  Chitty  v.  Nelson, 
2  B.  W.  C.  C.  496;  Alderidge  v.  Merry,  6  B.  W.  C.  C.  450;  Griffith 
v.  Cole  Bros,  et  al.,  (Iowa),  165  N.  W.  577;  Meyers  v.  Michigan 
Cent.  R.  Co.,  (Mich.),  165  N.  W.  703;  Cokolon  v.  Ship  Kentra, 
5  B.  W.  C.  C.  658;  International  &  G.  N.  R.  Co.  v.  Ryan,  82 
Tex.  565,  18  S.  W.  219.  In  the  present  case  the  employee  was 
umlt-r  the  protection  and  using  the  things  which  were  furnished 
to  him  by  the  company.  Under  such  circumstances  the  injury 
resulted  from  an  accident  arising  out  of  and  in  the  course  of  the 
employment.10 

Where  an  employee  was  killed  when  he  turned  back,  rive  minutes 
after  quitting  time,  after  washing  and  putting  on  hi?  coat  and 
hat,  to  look  for  his  companions,  and  in  so  doing  thrust  his  head 
into  an  elevator  shaft  and  was  struck  by  a  descending  elevator, 
the  court  held  that  the  accident  did  not  arise  "out  of  and  in  tho 
course  of  the  employment,  and  said:  "At  the  time  he  met  his  death 
he  was  not  engaged  in  the  business  of  his  employment.  He  had 
ceased  that.  Ilis  act  of  turning  back,  looking  about  the  room  for 

14.  Brassard  v.  Delaware  &  H.  Co..  186  App.  Div.   647, 175  N.  Y.  Supp. 
359  (1919),  18  N.  C.  C.  A.  1038;  Suaznik  v.  Alger  Logging  Co.,  176  Ore. 
189,  147  Pac.  922. 

15.  Holt  U>r.  Co.  et  al.,  v.  Indus.  Comni.  of  Wis.  et  al.,  168  WIs.  381. 
170  N.  W.  366;  3  W.  C.  L.  J.  549. 

539 


§  268  WORKMEN'S  COMPENSATION  LAW 

his  companions,  and  putting  his  head  into  the  elevator  shaft,  was 
his  own  voluntary  act.  He  had  deviated  from  the  direct  and  ordi- 
nary route  of  passage  for  purposes  of  his  own."16 

An  employee  fell  from  a  trestle  and  was  killed,  while  en  route 
to  his  home  for  lunch.  The  employee  chose  the  railroad  in  pref- 
erence to  a  highway,  in  order  that  he  might  not  be  seen  in,  his 
working  clothes  on  Sunday.  Permission  was  given  him,  by  his 
employer,  to  use  the  railroad,  and  he  was  paid  for  the  hour  con- 
sumed in  going  for  lunch.  In  holding  that  the  present  case  did 
not  come  under  the  rule  of  protection  against  accidents  occurring 
upon  the  premises  of  the  employer,  the  court  said:  "At  the  time 
the  deceased  fell  he  was  still  'within  the  limits  of  the  railroad 
yards  in  which  yard  he  performed  certain  of  his  duties,'  there 
being  nothing  to  indicate  how  far  he  had  proceeded  from  where 
he  stopped  work.  The  fact  that  an  employee  is  on  the  'premises' 
of  his  employer  when  those  premises  consist  of  a  railroad  right  of 
way  or  yards  does  not  have  the  significance  which  it  naturally 
would  have  in  the  case  of  an  ordinary  manufacturing  plant.  We 
know  that  such  rights  of  way  extend  indefinitely,  and  that  such 
yards  are  of  no  standard  size,  but  run  from  small  areas  to  tracts 
extending  over  many  miles.  Therefore,  to  say  that  the  deceased 
was  still  within  the  yards  where  he  performed  some  of  his  duties 
in  no  manner  indicates  that  he  was  still  within  that  reasonable 
distance  of  the  point  of  cessation  of  his  actual  work  where  he  would 
be  protected.  Nor  do  we  think  that  this  distance  and  protection 
would  be  indefinitely  and  as  a  matter  of  course  extended  simply 
because  the  employer  permitted  him  for  his  own  purposes  to 
travel  on  the  railroad  right  of  way  instead  of  taking  the  usual 
and  safe  course  by  the  highway."17 

Where  an  employee  was  injured  by  falling  into  the  elevator 
shaft  while  attempting  to  use  the  elevator  in  going  to  his  place 
of  employment  on  the  fourth  floor,  the  court,  in  holding  that 
the  accident  arose  "out  of  and  in  the  course  of  the  employment, 

16.  Urban  v.  Topping  Bros,  et  al.,  184  App.  Div.  633,  172  N.  Y.  Supp. 
432,  3  W.  C.  L.  J.  184. 

17.  Mclnerney  v.  Buffalo  &  S.  R.  Corp.,  225  N.  Y.  130,  121  N.  B.  806,  3 
W.  C.  L.  J.  494. 

540 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMPLOYMENT.        §    268 

said :  ' '  Under  the  rule  first  stated,  if  the  employer  were  the  owner 
of  the  building  and  the  employee  were  injured  on  the  elevator 
or  stairs  in  reaching  his  place  of  work  on  a  certain  floor,  it  cannot 
be  doubted  that  compensation  is  payable  under  the  statute.  The 
employee  has  reached  the  employer's  premises  and  is  using  a  means 
of  access  specially  provided  for  that  very  purpose.  It  would  seem 
to  follow  that  if  the  employer  did  not  own  the  building,  but  rented 
it  all,  compensation  would  still  be  payable,  even  though  the  em- 
ployer did  not  operate  or  control  the  elevator,  or  have  the  control 
or  care  of  the  stairs,  but  such  operation,  control,  and  care  remain- 
ed with  the  owner  of  the  building.  The  operation,  control  and 
care  of  the  elevator  and  stairs  in  such  a  case  would  seem  to  be 
a  matter  wholly  between  the  employer  and  owner  of  the  building. 
It  would  not  enter  as  between  employer  and  employee  and  would 
be  entirely  extraneous  to  the  employment.  As  to  the  employee 
it  would  be  a  matter  of  indifference  whether  the  elevator  or  stairs 
necessary  for  access  to  the  spot  where  he  is  to  work  are  by  the 
employer's  lease  operated  and  controlled  by  the  latter  or  by  the 
owner  of  the  building,  provided  only  that  they  are  in  fact  furnish- 
ed so  that  access  by  the  employee  may  be  had.  There  would  seem 
to  be  no  reason  for  allowing  compensation  where  the  employer  con- 
trols the  elevator  for  instance,  and  refusing  it  where  he  does  not, 
when  the  fact  as  to  who  controls  it  is  extraneous  to  the  employment 
and  the  theory  upon  which  compensation  is  now  allowed  under  the 
Workmen's  Compensation  Act  is  not,  as  before,  that  the  employer, 
either  directly  or  through  some  agency  or  instrumentality  under 
his  control,  has  been  guilty  of  some  breach  of  duty  toward  the 
employee.  So  far  as  the  employee  is  concerned,  the  elevator  or 
st.,irs  are  a  special  means  of  access  furnished  him  to  get  to  his 
place  of  work,  and,  in  effect,  furnished  him  by  his  employer. 
By  the  lease  the  tenant  has  the  right  as  an  appurtenance  of  the 
premises  leased  to  the  use  of  the  elevator  or  stairs  for  the  purpose 
of  access,  and,  so  far  as  the  tenant's  employees  are  concerned, 
the  elevator  and  the  stairs  are,  in  effect,  a  part  of  the  employer's 
premises."1* 

18.     Starr  Piano  Co.  T.  Indus.  Comm  ,  (1919),  — Cal.— ,  184  Pac.  860,  6  W. 
C.  L.  J.  14;     In  Re  Sundrine.  105  N.  E.  433,  218  Mass.  1,  5  N.  C.  C.  A. 

541 


§  268  WORKMEN'S  COMPENSATION  LAW 

Where  an  employee  was  crushed  between  cars  while  leaving 
premises,  and  using  a  route  not  intended  for  employees  but  not 
strictly  prohibited,  it  was  held  that  since  there  was  no  enforced 
rule  against  using  this  route  that  it  could  not  be  said  that  the 
accident  did  not  arise  out  of  and  in  the  course  of  the  employment.19 
Neither  could  that  be  said  where  employees  of  different  companies 
used  the  bridge  of  other  companies  indiscriminately  in  crossing 
canals.20 

An  employee  stopped  at  a  commissary  to  talk  to  other  employ- 
ees and  then  continued  homeward,  and  was  struck  by  a  stone 
thrown  by  a  blast,  which  according  to  custom,  was  fired  about  ten 
minutes  after  quitting  time.  The  court,  in  holding  that  the  ac- 
cident arose  out  of  the  employment,  said,  that  the  keeping  of  the 
commissary  by  the  employer  was  for  the  mutual  benefit  of  the  em- 
ployer and  employees,  and  that  the  employees  were  expected  to 
stop  and  avail  themselves  of  its  use.21 

Where  a  laundress  was  allowed  to  do  her  own  washing  on  the 
premises  of  her  employer  in  addition  to  board,  lodging  and  money 
as  compensation  for  her  labor  for  her  employer,  and  she  was  in- 
jured while  doing  her  own  washing,  it  was  held  that  the  accident 
did  not  arise  out  of  and  in  the  course  of  employment,  and  that  it 
was  immaterial  that  the  accident  occurred  while  she  was  doing 
what  she  was  permitted  to  do  by  her  contract  of  employment,  for 
she  was  not  engaged  in  performing  any  task  of  her  employer.22 

616,  L.  R.  A.  1916A,  318;  White  v.  Slattery  Co.,  —Mass.—,  (1920),  127 
N.  E.  597,  6  W.  C.  L.  J.  323;  Papineau  v.  Indus.  Ace.  Comm.,  —  Cal. 
App.  — ,  (1920),  187  Pac.  108,  5  W.  C.  L.  J.  492;  Latter's  case,  —  Mass.—, 
130  N.  B.  637,  (1921). 

19.  Baltimore  Car  Foundry  Co.  v.  Ruzicka,  132  Md.  491,  104  Atl.  167, 
17  N.  C.  C.  A.  945,    2  W.    C.  L.    J.  791;    In  1-3  Claim  of    Chambers,  Op. 
Sol.  Dep.  C.  &  L.  (1915),  291. 

20.  Procacins  v.  E.  Horton  &  Sons,  —  Conn.  — ,  111  Atl.  594,  7  W.  C.  L. 
J.  31. 

21.  Merlino  v.  Conn.  Quarries  Co.,  93  Conn.  57  104  Atl.  396, 17  N.  C.  C.  A. 
945,  2  W.   C.  L.  J.   781;  In  re    Stephen  J.   Lloyd,  2nd  A.  R.    U.  S.  O.  C. 
260;    In  re  Max  Stange,  2nd  A.  R.  U.  S.  C.  C.  261. 

22.  Daley  v.  Bates  and  Roberts,  224  N.  Y.  126,  120  N.  E.  118,  17  N.  C. 
C.  A.  946. 

542 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    268 

"When  Trotzke  entered  the  inclosure  of  the  Inland  Steel  Com- 
pany undoubtedly  he  was  in  a  place  where  his  employer's  busi- 
ness required  him  to  be,  and  so  long  as  he  remained  in  that  place 
he  was  exposed  to  certain  inherent  dangers  to  which  he  would  not 
have  been  exposed  apart  from  the  business  of  his  employer.  By 
one  of  the  inherent  hazards  of  that  place  he  was  fatally  injured, 
and  the  Industrial  Board  was  justified  in  finding  that  the  injury 
which  resulted  in  his  death  arose  out  of  the  employment."23 

Deceased  had  been  in  the  employ  of  a  hotel  company,  in  charge 
of  the  passenger  and  freight  elevators  and  their  operators.  On  the 
day  of  the  accident  she  had  performed  the  duties  of  starter  and 
INK!  worn  the  uniform  of  a  starter.  She  had  "punched  out"  on  the 
time  clock  at  7:30  p.  m.,  and  a  few  minutes  after  8  p.  m.,  she 
nifored  one  of  the  elevators  and  rode  up  and  down  for  15  minutes. 
At  this  time  she  was  in  street  attire.  She  was  talking  with  the 
operator,  but  the  topic  of  conversation  does  not  appear.  While 
they  were  thus  occupied,  a  passenger  got  off  at  the  tenth  floor, 
and  deceased  followed.  The  operator  closed  the  door,  and  as  the 
elevator  started  up  deceased  pushed  open  the  door  and  attempted 
to  enter.  She  tripped,  and  as  the  elevator  was  moving,  fell  into 
the  shaft.  Compensation  was  awarded  for  her  death,  the  court,  in 
affirming  the  award,  saying:'  "Relators  make  much  of  the  fact 
that  deceased  had  'punched  out'  on  the  time  clock  and  that  she 
was  dressed  for  the  street;  hence,  it  is  said,  the  finding  is  not  sus- 
tained that  she  met  death  in  the  course  of  her  employment  from 
an  accident  arising  out  of  it.  This  overlooks  some  persuasive  tc^ti 
inony  given  by  the  assistant  manager  of  the  employer,  to  the  effe-t 
that  deceased  had  no  stated  hours  of  work,  but  was  practically 
on  duty  all  the  time,  as  he  put  it,  '24  hours  in  the  day:'  that  she 
iiM'd  her  own  discretion  as  to  the  time  within  which  she  was  to  do 
that  which  was  expected  of  her.  that  the  wearing  of  the  uniform 
was  not  obligatory  for  her,  and  that  she  was  not  required  to  punch 
the  time  clock,  for  her  wages  were  not  paid  upon  its  record.  The 
inference  is  near  at  hand  that  she  was  at  the  moment  of  the  ac- 

23.    Great  Lakes  Dredge  A  Dock  Co..  v.  Trotrke.  — Ind.  App.— ,  121  N. 
E.  675.  18  N.  C.  C.  A.  1032. 

543 


§  268  WORKMEN'S  COMPENSATION  LAW 

cident  engaged  in  her  work,  endeavoring  to  ascertain  whether  the 
doors  of  the  elevator  she  was  riding  on  locked  properly.  It  seems 
their  defective  condition  in  this  respect  was  the  direct  cause  of 
her  death."24 

An  employee  was  injured  when  he  was  leaving  the  premises,  up- 
on being  informed  that  his  services  were  not  required.  It  appeared 
that  upon  the  particular  morning  of  the  accident  the  employee  was 
late  but  it  was  claimed  that  he  was  refused  work  because  he  was 
not  in  a  sober  condition.  The  employer  sought  to  escape  liability 
on  the  grounds  that  the  employee  was  not  a  regular  employee,  but 
was  there  asking  for  work,  and  therefore  he  was  not  injured  in 
the  course  of  his  employment.  It  was  found  that  he  had  been  em- 
ployed for  8  months  previous  to  the  day  of  the  accident,  and  that 
there  was  not  a  separate  employment  from  day  to  day.  He  was 
therefore  a  regular  employee  and  was  there  in  the  performance 
of  his  duty  as  such,  and  was  entitled  to  benefit  of  the  act.25 

An  employee  on  a  boat  reported  for  duty  at  5  p.  m.  and  was  in- 
formed that  the  boat  would  not  sail  until  11  p.  m.  He  then  went 
ashore,  and  when  returning  at  10  p.  m.  he  sustained  injuries  while 
passing  through  his  employer's  yard.  The  court  held  that  if  the 
employee  left  the  boat  without  permission,  then  the  accident  did 
not  arise  out  of  the  employment.  Th'e  court  said:  "If  Carter  left 
the  boat  by  permission,  and  while  returning  to  it  and  his  work  he 
was  injured  upon  his  master's  premises,  and  while  he  was  pro- 
ceeding over  a  not  unreasonable  route,  and  while  he  was  at  a 
place  where  he  had  a  right  to  be,  and  within  the  period  of  his  em- 
ployment, which  began  at  5  o'clock,  he  was  injured  in  the  course 
of  his  employment,  and  his  employment  was  the  proximate  cause 
of  his  injury. '  '2e 

A  trackman  was  engaged  to  work  for  a  railroad  company.  His 
employment  was  to  begin  a  few  days  later.  He  was  given  a  pass 
over  the  company's  line  to  a  bunk  car  furnished  by  the  company. 

24.  State  ex   rel.  Radisson   Hotel  v.  District  Court  Hennepin   County, 
(Minn.),  172  N.  W.  897. 

25.  Kiernan  v.   Priestedt  Underpinning  Co.,   171  App.    Div.    539,  157 
N.  Y.  Supp.  900,  13  N.  C.  C.  A.  497. 

26.  Carter  v.  Rowe,  92  Conn.  82,  101  Atl.  491,  15  N.  C.  C.  A.  258. 
544 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    268 

He  was  struck  by  one  of  the  company's  cars  and  killed  while  wait- 
ing to  get  into  the  bunk  car  after  he  had  arrived  on  the  grounds 
where  the  car  was  located.  It  was  held  that  the  accident  did  not 
arise  out  of  and  in  the  course  of  the  employment,  the  court  saying, 
that  he  was  not  at  the  time  of  the  accident  engaged  in  performing 
any  act  in  the  line  of  his  employment,  since  his  labors  under  the 
agreement  were  not  to  begin  until  some  time  later.27 

Where  a  hotel  chef  had  been  dismissed  from  employment  but 
failed  to  leave,  and  about  an  hour  after  he  was  dismissed  he  cut  his 
hand  while  preparing  meals,  it  was  held  that  the  relationship  of 
employer  and  employee  had  been  terminated  prior  to  the  accident, 
therefore  the  accident  did  not  arise  out  of  and  in  the  course  of  the 
employment,* 

Where  a  laborer  was  injured  while  passing  into  a  building  under 
construction,  to  apply  for  work,  in  response  to  information  that 
njen  were  needed,  it  was  held  that  he  was  not  an  employee.29 

An  employee,  on  his  way  to  the  time  keeper's  office  to  check 
out  in  the  evening,  had  to  wade  through  impure  flood  water  which 
overflowed  defendant's  car  yards.  An  old  sore  became  infected 
and  necessitated  amputation.  The  evidence  tended  to  show  that 
there  was  no  other  means  of  getting  from  the  place  where  claimant 
was  employed.  Affirming  judgment  in  favor  of  the  employee  the 
court  said:  "Irrespective  of  any  question  of  negligence,  the 
standing  of  the  flood  water  on  the  ground  which  was  a  part  of  the 
defendant's  factory  became  for  the  time  being  one  of  the  condi- 
tions under  which  the  business  was  carried  on.  It  was  not  a  condi- 
tion peculiar  to  the  kind  of  business  done,  but  it  was  one  which 
gave  rise  to  a  special  risk  incurred  by  the  workmen  there  engaged. 
We  think  the  injury  (assuming  the  facts  to  be  as  claimed  by  the 
plaintiff)  is  to  be  regarded  as  one  arising -out  of  the  employ- 
ment."80 

27.  Hloomington.  Decatur  &  Champaign  R.  Co.  v.  Industrial  Bd.  et  al.. 
276  111.  239,  114  N.  E.  517,  13  N.  C.  C.  A.  490. 

28.  Greenberg  v.  Atwood,  38  N.  J.  L.  J.  54.  13.  N.  C.  C.  A.  495. 

29.  Dickerson  v.  Bernstein,  137  S.  W.  773.  144  Ky.  19. 

30.  Monson  v.  Battelle.  102  Kan.  208,  170  Pac.  801,  16  N.  C.  C.  A.  896.  1 
W.  C.  L.  J.  770. 

54ft 
W.  C.— 35 


§  268  WORKMEN'S  COMPENSATION  LAW 

An  employee  fell  downstairs  when  on  his  way  out  after  working 
hours  on  his  way  home,  intending  to  make  a  delivery  of  cigars 
for  his  employer  according  to  his  usual  custom.  Holding  that  the 
accident  arose  out  of  an*d  in  the  course  of  deceased's  employment, 
the  court  said:  "It  is  plain,  therefore,  that  Grieb's  service,  if  it 
had  been  rendered  during  working  hours  would  have  been  inci- 
dental to  his  employment.  To  overturn  this  award,  it  is  necessary 
to  hold  that  the  service  ceased  to  be  incidental  because  rendered 
after  hours.  The  law  does  not  insist  that  an  employee  shall  work 
with  his  eyes  upon  the  clock.  Services  rendered  in  a  spirit  of 
helpful .  loyalty,  after  closing  time  had  come,  have  the  same  pro- 
tection as  the  services  of  the  drone  or  laggard.  *  *  *  All  the  cir- 
cumstances point  to  the  conclusion  that  Grieb  left  the  factory  on 
the  fatal  errand  for  the  sole  purpose  of  helping  the  master  in  the 
transaction  of  the  master's  business.  It  was  not  mere  friendship, 
it  was  the  relation  of  employer  and  employee,  that  led  the  one  to 
request  the  service  and  the  other  to  render  it.  If  such  service  is 
not  incidental  to  the  employment  within  the  meaning  of  this  stat- 
ute, loyalty  and  helpfulness  have  earned  a  poor  reward."31 

A  miner  slipped  and  fell  on  a  track  in  leaving  the  premises  on 
a  frosty  morning,  and  sustained  injuries.  The  lower  court  held 
that  the  risk  of  falling  was  common  to  all  persons  on  a  frosty 
morning  and  therefore  the  accident  did  not  arise  out  of  the  em- 
ployment. Applying  the  rule  laid  down  by  the  House  of  Lords  in 
Simpson  v.  Sinclair,  (1917)  A.  C.  127,  (1917)  W.  C.  &  Ins.  Eep. 
164,  15  N.  C.  C.  A.  224n,  rev'g  (1915)  W.  C.  &  Ins.  Rep.  543, 
(1915)  2  Sc.  L.  T.  291,  Swinfen  Eady,  L.  J.,  said:  "Here  it  was  by 
reason  of  the  workman's  employment  that  he  was  compelled  to  be 
in  this  particular  place.  It  was  the  ordinary  way  of  leaving  the 
colliery  premises  to  go  to  his  home.  There  is  no  suggestion  that 
it  was  a  way  that  he  ought  not  to  have  taken,  or  a  prohibited 
way.  It  was  the  ordinary  way  home,  and  slipping  and  falling 
with  his  arm  on  this  rail  at  this  spot  was,  in  my  opinion,  an  ac- 
cident that  arose  out  of  as  well  as  in  the  course  of  his  employ- 

31.  Grieb  v.  Hammerle,  222  N.  Y.  382,  118  N.  E.  805,  16  N.  C.  C.  A.  897,  1 
W.  C.  L.  J.  846;  In  re  Cairn  of  Fahey,  Op.  Sol.  (1915),  218. 

546 


ACCIDENT  ARISING  OUT  OF  <  01  u>i;  OK  KM  l'l.<  IY  M  KN T.        §    268 

in mt.  For  these  reasons  I  am  of  opinion  that  the  appeal  should 
be  allowed,  and  an  award  made  in  favor  of  the  workman.  ":r- 

The  usual  means  of  heating  water,  for  washing  before  leaving 
the  premises  after  work  hours,  was  out  of  order,  and  the  em- 
ployees sought  to  heat  a  bucket  of  water  by  placing  it  in  a  tank, 
which  they  took  to  be  filled  with  hot  water,  but  which  in  fact 
was  an  explosive  acid  that  exploded  when  it  came  in  contact  with 
the  cold  bucket  and  severly  burned  the  employee.  The  tank  bore 
no  danger  label.  The  fact  that  the  injured  employee  departed 
from  the  usual  and  customary  way  of  providing  hot  water  for 
\\asliinvr.  when  deprived  of  the  usual  means  of  heating  water  for 
such  purpose,  cannot  deprive  him  of  the  benefits  provided  by  the 
Indiana  workmen's  compensation  law.  He  was  still  pursuing  his 
original  purpose  and  the  deviation  in  the  plan  of  accomplishing 
the  end  in  view,  under  the  circumstances,  was  not  unreasonable 
or  unnatural.88 

The  test  in  determining  whether  the  injury  has  arisen  in  the 
course  of  employment  is  then  said  to  be  where  the  deceased, 
"though  actually  through  with  the  work,  was  still  within  the 
sphere  of  the  work,  or  was  doing  what  a  man  so  employed  may 
reasonably  do  within  a  time  durinir  which  he  is  employed  and  at 
a  place  wh.-re  he  may  reasonably  be  during  that  time."84 

Where  a  threshing  hand  was  injured  while  assisting  in  placing 
the  machine  on  the  highway  after  a  job  had  been  finished  and  the 
employee  paid  off,  it  was  held  that  the  accident  arose  out  of  and 
in  the  course  of  the  employment,  because  of  a  custom  of  the 

32.  Wales  v.  Lambtoii  &  H.  Collides,  (1917),  W.  &  C.  Ins.  Rep.  289,  16 
N.  C.  C.  A.  898;     Marsh  v.  Pope  &  Pearson,  Ltd.,   (1917),  W.  C.  &  Ins. 
Rep.  267,  16   N.  C.  C.  A.  899;    In  re    Herbert  Ferguson,    2nd  A.   R.  U.  S. 
C.  C.  262. 

33.  In  re   Ayers.   64  Ind.  App.   — ,  118  N.   E.  386,  16    N.  C.  C.    A.  900, 
1  W.  C.  L.  J.  559. 

3.4.  In  re  Stacy,  225  Mass.  174  114  N.  E.  206;  Demann  v.  Hydrauli, 
Engineering  Co.,  192  Mich.  594,  159  N.  W.  380;  Indian  Creek  Coal  Min- 
ing Co.  v.  Wehr,  —  Ind.  — .  (1920),  128  N.  E.  765,  7  W.  C.  L.  J.  47;  In  Re 
Louis  Mahin,  3rd.  A.  R.  U.  S.  C.  C.  174. 

547 


§  268  WORKMEN'S  COMPENSATION  LAW 

country  wherein  threshing  employees  were  expected  to  assist  in 
placing  the  machine  out  on  the  highway.35 

An  employee  was  compelled  to  cross  a  trestle  over  planks  which 
were  unguarded  in  order  that  he  might  reach  the  car  from 
which  he  was  to  unload  coal.  The  planks  leading  to  the  car  were 
frosty  and  slippery.  Deceased  was  found  on  the  ground  below 
the  ladder,  where  he  naturally  would  have  been  had  he  fal- 
len from  the  trestle.  In  overruling  the  contention  of  the  em- 
ployer that  the  accident  did  not  arise  out  of  and  in  the  course  of 
the  employment,  the  court  said:  "The  board  were  well  war- 
ranted in  finding  that  the  employee  met  with  his  injury  in  the 
course  of  his  employment.  It  occurred  at  the  time  and  place  of 
his  occupation,  and  while  he  was  engaged  in  the  duties  incidental 
to  it.  The  evidence  also  warranted  their  conclusion  that  the  in- 
jury arose  out  of  his  employment.  If  his  fall  was  due  to  the 
slippery,  unguarded  and  dangerous  condition  of  the  trestle  and 
ladder,  then  his  injury  was  caused  by  a  risk  incident  to  the  work 
he  was  employed  to  do."36 

An  employee  was  blind  in  one  eye,  but  his  vision  was  ample  for 
the  work  he  did.  About  6  p.  m.,  when  he  was  on  his  way  leaving 
the  premises  by  a  stairway,  he  slipped  or  became  overbalanced 
and  fell.  In  holding  that  the  accident  arose  out  of  his  employ- 
ment the  court  said:  "We  are  of  opinion  that  there  is  a  reason- 
able probability  that  some  employee  in  the  course  of  his  employ- 
ment will  fall  and  receive  an  injury  while  descending  a  stairway 
of  an  employer,  constructed  and  used  as  the  stairway  was  in  the 
case  at  bar.  It  follows  that  the  likelihood  of  such  a  fall  is  a  risk 
and  hazard  of  that  business."37 

Where  a  miner  was  injured  by  a  projecting  piece  of  slate, 
while  leaving  the  mine  at  the  close  of  his  day 's  work,  it  was  held 

35.  Newson  v.   Burstal,  (1915),  W.  C.  &    Ins.  Rep.   16,  15  N.   C.  C.  A. 
218. 

36.  In   re  Uzzio,    228  Mass.    331,  117    N.  E.  349,  15    N.  C.    C.  A.   234,  1 
W.  C.  L.  J.  80. 

37.  In  re    O'Brien,  228    Mass.  380,    117  N.    E.  619,  15    N.  C.  C.    A.  236, 
1  W.  C.  L.  J.  213. 


548 


ACCIDENT  ARISING  OUT  OP  COURSE  <>K   F.MI'I.OYMENT.         §    268 

that  the  accident  arose  out  of  and  in  the  course  of  the  employ- 
ment. 38 

Where  an  employee  was  injured  when  he  attempted  to  board 
a  switch  engine  to  go  to  punch  a  time  clock  at  the  entrance  of 
the  employer's  plant,  about  five  blocks  from  where  the  employee 
quit  work,  it  was  held  that  the  accident  happened  in  the  course 
of  the  employment  but  did  not  arise  out  of  it,  the  court  savin-,':  "It 
cannot  be  said  that  the  attempt  to  mount  the  locomotive  was  in 
the  interest  of  the  employer,  or  for  the  purpose  of  expediting  the 
employer's  work,  since  the  employer  was  not  interested  in  the 
sp.-cdy  checking  out  of  the  appellee,  but  interested  only  in  the 
checking  out  being  accomplished.  In  our  judgment  the  facts  do 
not  present  a  situation  wherein  the  employee  negligently  per- 
formed a  duty,  or  was  guilty  of  negligence  in  the  performance  of 
a  duty,  but  rather  a  case  wherein  he  attempted  unnecessarily  to 
do  a  perilous  act,  not  reasonably  incident  to  his  employment."38 

Where  a  workman  quit  his  work  at  the  end  of  the  day  and  rode 
towards  the  other  end  of  the  mine  on  an  engine  with  other  em- 
ployees for  the  purpose  of  ascending  and  was  injured,  when  the 
engine  collided  with  cars  which  had  been  insecurely  placed  on 
the  switch  line,  it  was  held  that  the  injury  arose  out  of  and  in 
the  course  of  the  employment.  The  court  said:  "While  he  had 
ceased  work  at  the  coal  loader,  he  was  still  in  the  pit.  the  place 
of  employment,  and  still  under  the  direction  and  control  of  the 
defendant.  It  cannot  be  said  he  was  outside  of  his  employment, 
when  he  was  passing  from  one  part  of  the  pit  to  the  other.  ridini_r 
on  the  engine,  a  common  means  of  transportation  in  going  to  the 
tipple,  an  appliance  of  the  defendant  for  the  purpose  of  ascend- 
ing above  ground.  It  was  the  usual  custom  of  the  miners  "to 
ride  out  upon  the  last  trip"  upon  the  dinkey  engines,  and  this 
was  done  with  the  acquiescence  of  the  defendant.  The  injury 
which  occurred  on  the  trip  was  a  result  which  was  or  should 

38.  Sedlock  v.   Carr.  Coal   &  Mfg.   Co .  98   Kan.  680,   L.  R.   A.  1917  B. 
372.  159  Pac.  9,  15  N.  C.  C.  A.  237. 

39.  Inland  Steel  Co.  v.  Lambert,  64  Ind.  App.  — ,  118  N.  E.  162,  15  N. 
C.  C.  A.  240,  1  W.  C.  L.  J.  347. 

.549 


§  268  WORKMEN'S  COMPENSATION  LAW 

have  been  in  contemplation  of  the  defendant  and  which  grew 
out  of  and  was  reasonably  incident  to  plaintiff's  employment."40 

Where  an  employee  attempted  to  cross  between  the  cars  of  a 
train  standing  on  the  track,  and  the  train  moved,  precipitating 
the  employee  to  the  ground  and  killing  him,  it  was  held  that  the 
accident  did  not  arise  out  of  the  employment,  the  court  saying: 
"To  establish  that  the  accident  arose  out  of  the  employment  it 
must  be  shown  that  it  was  part  of  his  employment  to  hazard, 
suffer  or  do  that  which  caused  the  injury.  Therefore  where  a 
workman  has  permission  to  traverse  his  employer's  property,  but 
not  by  any  prescribed  route,  or  marked  path,  such  permission 
does  not  entitle  him  to  climb  over  or  scramble  under  any  obstacle 
which  he  may  find  on  a  route  chosen  arbitrarly  by  him."41 

Where  an  employee,  while  attempting  to  leave  a  ship,  fell  from 
a  plank  used  in  reaching  the  quay  and  sustained  injuries  re- 
sulting in  his  death,  it  was  held  that  the  accident  arose  out  of  and 
in  the  course  of  the  employment.42 

Where  a  warehouse  employee  was  killed  by  an  electric  current 
when  he  went  into  the  washroom  to  clean  up  after  his  day's 
\vork,  it  was  held  that  the  accident  arose  out  of  and  in  the  course 
of  his  employment.43 

Where  a  boy  was  suspended  from  work  and  ordered  to  go  to 
the  pit  bottom,  a  place  where  the  miners  waited  for  the  ascension 
of  the  cage,  but  refused  to  do  so  and  was  injured,  it  was  held 
that  his  injury  did  not  arise  out  of  nor  in  the  course  of  the  em- 
ployment.44 

40.  Chance  v.  Reliance  Coal  &  Mining  Co.,  —Kan.—,  (1920),  193  Pac. 
889,  7  W.  C.  L.  J.  201. 

41.  Lancashire  &  Yorkshire  Ry.  v.  Highley,  (1917),  W.  C.  &  Ins.  Rep. 
179,  15  N.  C.  C.  A.  210. 

42.  Duck  v.  North  Sea  Steam  Trawling  Co.  Ltd.,   (1915),  W.  C.  &  Ins. 
Rep.  529,  15  N.  C.  C.  A.  257. 

43.  Hollenbach  Co.  v.  Hollenbach,  181  Ky.,  262,  204  S.  W.  152,  2  W.  C. 
L.  J.  492. 

44.  Smith  v.  South  Normanton  Colliery  Co.,   (1903),  1  K.  B.  204,  5  W. 
C.  C.  14,  7  N.  C.  C.  A.  422;  Schlenker  v.  Panama  Col.  Expos.  Co.,  1  Cal. 
I.  A.  C.  D.  (1914),  9,  7  N.  C.  C.  A.  423. 

550 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   268 

Where  an  employee  was  injured  after  the  whistle  blew  ;m<l 
while  he  was  running  to  get  his  coat  and  hat,  it  was  held  to  be 
an  accident  arising  out  of  and  in  the  course  of  employment.4" 

A  railroad  employee  was  jriven  permission  to  go  home  for  his 
dinner,  which  was  contrary  to  custom.  He  chose  to  follow  the  rail- 
road track  in  preference  to  taking  a  highway,  which  led  in  the 
same  direction  and  to  his  home.  He  was  struck  by  a  train,  of 
which  he  had  been  warned  and  was  killed.  It  was  held  that  the 
evidence  was  not  sufficient  to  establish  that  the  accident  arose  out 
of  or  in  the  course  of  the  employment.  The  fact  that  he  was  still 
on  the  premises  of  the  employer  was  immaterial,  since  he  was  on 
a  mission  of  his  own  and  traveling  over  a  route  entirely  of  his 
own  choosing.46 

Where  an  employee,  who  was  ordered  to  bring  his  boots  for  use 
in  the  employment,  was  struck  by  a  train  and  killed  while  cross- 
ing^he  tracks  to  sit  upon  a  hand-car  to  put  on  his  boots,  it  was 
held  that  at  the  time  of  the  accident  deceased  was  in  the  perform- 
ance of  an  act  incidental  to  his  employment.47 

Where  an  employee  is  injured  while  ringing  out  at  a  time 
clock,  at  the  close  of  his  day's  work  the  accident  arises  out  of 
and  in  the  course  of  the  employment.48 

Where  an  employee  was  injured  while  running  with  others  at 
the  close  of  the  noon  hour,  to  punch  the  time  clock,  after  having 
been  engaged  in  playing  ball,  it  was  held  that  the  accident  did 
not  arise  out  of  and  in  the  course  of  the  employment.40 

A  workman  fell  and  was  injured  while  going  through  the  main 
gate  of  a  navy  yard.  It  was  held  that  the  accident  arose  out  of 
and  in  the  course  of  the  employment.50 

45  In  Re  Shroeb.  Ohio  I.  C.,  (1914).  7  N.  C.  C.  A.  420;  Gardiner  v. 
State  of  Cal.  Printing  Office.  1  Cal.  I.  A.  C.  D.  (1914),  4,  4  N.  C.  C.  A.  859. 

46.  Hills  v.  Blair  et  al.,  182  Mich.  20,  148  N.  W.  243.  7  N.  C.  C.  A.  409. 

47.  Brown  v.  City  of  Decaf  ur.  186.  111.  App.  147.  7  N.  C.  C.  A.  418. 

48.  In  re  Claim  of  Ru«an.  Op.  Sol.  Dep.  C.  &  L.  220.  (1915). 

49.  In  re  Claim  of  David  Kramer.  Op.  Sol.  Dep.  C.  &  L.    (1916).  322. 

50.  In  re  Claim  of  Guerin,  Op.  Sol.  Dep.  C.  &  L.   (1915),  324;   In  re 
Claim  of  Bernard  Op.  Sol.  Dep.  C.  &  L.  (1916),  323;   In  re  Claim  of  Me- 
Sorley.  Op.  Sol.  Dep.  C.  *  L.   (1915),  331. 

551 


§  268  WORKMEN'S  COMPENSATION  LAW 

It  may  be  stated  as  a  general  rule  that  an  accident  arises  out  of 
the  employment  if  the  employee  has  reached  his  employer's  prem- 
ises on  his  way  to  work,  or  is  still  on  the  employer's  premises 
on  his  way  home.  -The  exception  to  this  rule  arising  from  certain 
extraordinary  facts  and  circumstances  are  noted  throughout  this 
chapter.51 

Where  an  employer's  premises  includes  practically  the  whole 
town  with  no  well  defined  routes  for  pedestrian  travel,  an  em- 
ployee killed  by  a  train  while  returning  from  lunch  was  at  the  time 
in  the  course  of  the  employment,  even  though  the  train  was  own- 
ed by  others  than  the  employer.  The  court  said :  ' '  By  the  direct  lan- 
guage of  the  Texas  act  there  need  be  no  direct  causal  connection 
between  the  actual  employment  and  the  injury,  the  statute  in 
this  particular  being  satisfied  if  it  be  merely  shown  that  the  in- 
jury occurred  in  the  course  of  the  employment  in  the  sense  that 
it  had  to  do  with  and  originated  in  the  business  of  the  employer, 
the  only  other  requirement  being  that  the  employee  be  at  the 
time  engaged  in  or  about  the  furtherance  of  his  employer's  affairs. 

"As  we  understand  the  current  decisions  touching  the  spirit 
of  such  laws  as  this,  the  employee  does  not  have  to  be  actually 
performing  some  specific  duty  of  his  employment  at  the  precise 
time  of  the  injury  before  it  can  be  said  to  have  been  received  'in 
the  course  of  employment,'  but  it  is  quite  generally  held  that,  if 

51.  Nicol  v.  Youngs  Paraffin  Light  &  Mineral  Oil  Co.,  (1915),  (Scotch 
Court  of  Session),  8  B.  W.  C.  C.  395,  12  N.  C.  C.  A.  654;  Gane  v.  Norton 
Hill  Colliery  Co.,  (1909),  2  B.  W.  C.  C.  42;  Hoskins  v.  Lancaster,  (1910), 

3  B.  W.  C.  C.  476;     Fitzpatrick  v.  Hindley  Field  Colliery  Co.,    (1901),  3 
W.  C.  C.  37;     4  W.  C.  C.  7;     Re  Ramon  Z.  Gonzales,  Op.  Sol.  Dep.  L.  p  333; 
Re  Wm.  P.  Fahey,  Id.  218;  Re  O.  D.  Koontz,  Id.  229,  Re  Joseph  Chambers, 
Id.  226,  228,     Re  Emanual  L.  Bernard,  Id.  323,   Re  M.  Guerin,  Id.  324; 
Sedlock  v.  Carr  Coal  Mining  Co.,  (1916),  98  Kan.  680,     159  Pac.  9,     In  re 
Stacy,  (1916),  225  Mass.  174;   114  N    E    206;     De  Mann  v.  Hydraulic  En- 
gineering Co.,    (1916),  192  Mich.  594,  159  N.    W.    380;     Matter  of  Kier- 
nan  v.  Friestadt  Underpinning  Co.,  171  App.  Div.   539,  157  N.   Y.   Supp. 
900;     Leslie  v.  O'Connor  &  Richman,  5  N.  Y.  St.  Dep.  Rep.  383,     11  N. 
C.  C.  A.  501;     Foley  v.  Bretton  Hall  Co.,  4  N.  Y.  St.  Dep.  Rep.  339,     Smith 
v.'Gold,  (1916)),  9  N.  Y.  St.  Dep.  Rep.  376 x     Nicholson  v.  Klipstein  &  Co., 

4  N.  Y.  St.  Dep.  Rep    412.  But  see  Schweiss  v.   Indus.  Comm.,  —  111.  — , 
H920),  126  N.  E.  566. 

552 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    268 

he  is  doing  something  incidental  to  his  service  while  on  the  prem- 
ises of  the  master,  the  injury  under  such  circumstances  meets 
the  requirements  and  is  compensable.  Carter  v.  Rowe,  92  Conn, 
82,  101  Atl.  491;  Milwaukee  Fuel  Co.  v.  Commission,  159  Wis. 
635,  150  N.  W.  998,  par.  3,  Rainford  v.  Ry.  Co.,  289  111.,  427, 
124  N.  E.  643."" 

§  26!).  Going  to  and  from  Work  Where  Employment  is  not 
Limited  to  Fixed  Hours. — An  employee  whose  hours  of  work 
were  not  limited  to  any  definite  time  was  called  upon  to  convey 
other  employees  to  an  outside  job,  and  while  returning  his  auto 
>l<Mded  and  turned  over  and  he  was  killed.  The  court,  in  holding 
that  the  accident  arose  "out  of  and  in  the  course  of  the  employ- 
ment," said:  "When  a  member  of  the  firm  directed  Horace  Rogers 
to  take  Mr.  Walke  to  the  Dolan  camp,,  it  was  his  duty  to  obey. 
There  was  no  obligation  resting  on  him  to  inquire  whether  the 
performance  of  that  duty  would  inure  to  the  benefit  of  the  firm. 
That  question  was  no  concern  of  his.  It  would  be  an  unjust  and 
unreasonable  rule  that  would  have  required  him  to  decide  that  ques- 
tion at  his  peril.  The  presumption  is  that  the  master  knows  his  own 
tnisincss,  and  it  is  the  exclusive  province  of  the  master  to  determine 
questions  of  that  character  for  himself."58 

Decedent  was  in  the  employ  of  the  relator,  whose  principal 
place  of  business  was  at  Minneapolis,  Minnesota.  He  received  s 
salary  and  traveling  expenses,  excepting  board  while  at  home.  His 
duties  were  to  solicit  shipments  of  grain  to  the  relator.  While 
on  his  way  home  from  the  field  of  labor  on  Sunday  morning,  he 
came  to  liis  death  by  accident,  while  attempting  to  cross  the 
Missouri  river  in  a  row  boat.  In  holding  that  the  dependents  were 
entitled  to  compensation,  the  court  said:  "Decedent's  duties  re- 
quired his  traveling  from  place  to  place  in  his  territory,  which 
was  several  hundred  miles  from  his  employers'  place  of  business. 
It  wa«  proper  that  he  have  some  regular  or  fixed  place  for  com- 
niimieatinjr  with  his  employer^.  Mis  home  was  near  his  field  of 

52.  Lumberman's    Reciprocal    Ass'n    v.    Behnken.    —Tex.   Civ.   App. — . 
(1920),  226  S.  W.  154,  7  W.  C.  L.  J.  363. 

53.  Rogers  v.  Rogers,  — Ind.  App.—.  122  N.  E.  778,  (1919),  18  N.  C.  C. 
A.  1033,  4  W.  C.  L.  J.  58. 

553 


§  269  WORKMEN'S  COMPENSATION  LAW 

labor.  He  made  it  his  headquarters,  as  well  as  his  retreat  for 
over  Sunday,  as  he  properly  would,  and  as  his  employers  must 
naturally  have  expected  and  intended  he  should  do.  Indeed,  all 
of  the  correspondence  between  them  so  indicates.  We  see  no 
reason  why  he  might  not  properly,  and  without  stepping  outside 
the  scope  of  his  employment,  return  to  his  home  from  his  field  of 
labor  on  the  Sabbath  day."54 

The  duties  of  a  flour  salesman  required  him  to  be  on  the  pub- 
lic streets,  and  his  hours  of  labor  were  largely  within  his  own  dis- 
cretion. While  crossing  a  street,  on  his  way  to  board  a  car  to  re- 
turn to  his  home,  from  where  it  was  customary  for  him  to  tele- 
phone orders  for  goods  to  his  employer,  he  was  struck  and  injured. 
It  was  held  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment.55 

Deceased  was  an  engineer  employed  by  the  defendant  with  no 
fixed  hours  of  service.  He  was  sent  out  to  a  point  in  another  state 
to  examine  natural  gas  burners.  Upon  returning  he  was  struck 
and  killed  w7hile  going  to  his  home  to  sleep.  It  was  held  that  the 
accident  occurred  in  the  course  of  the  employment  and  arose  out 
of  it.  The  court  holding,  that  the  mere  fact  that  he  was  going 
home  before  reporting  to  his  employer  was  immaterial,  in  view 
of  the  fact  that  he  arrived  in  town  too  late  to  go  to  his  employer 
that  day  to  report.56 

Compensation  was  awarded  for  the  death  of  an  elevator  operator 
which  occurred  after  she  had  quit  her  regular  shift,  punched  the 
clock  and  changed  to  street  clothes,  and  was  riding  up  and  down 
on  the  elevator  conversing  with  the  operator  who  relieved  her.  She 
stepped  off  on  the  tenth  floor,  and  when  the  elevator  operator 
closed  the  door  and  started  the  elevator  upwards,  decedent  pushed 
upon  the  door  and  attemped  to  enter,  tripped,  and  fell  back  into 

54.  St.   ex    rel.    McCarthy   Bros.    Co.    v.  District    Court   of    Hennepin 
County  et  al.,  140  Minn.  61,  169  N.  W.  274,  3  W.  C.  L.  J.  161;     State  ex 
rel  London  &  Lancashire  Indemnity  Co.  of  America  v.  District  Court  of 
Hennepin  County,  141  Minn.  348,  170  N.  W.  218,  (1919) „  17  N.  C.  C.  A.  958. 

55.  Bachman  v.  Waterman  —  Ind.  App.  — ,  121  N.  E.  8,  3  W.  C.  L.  J. 
115. 

56.  Haddock  v.  Edgewater  Steel  Cc-.,  263  Pa.  120,  106  Atl.  193  (1919), 
3  W.  C.  L.  J.  786. 

554 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   269 

the  shaft.  In  affirming  an  award  for  compensation  the  court  said : 
"Relators  make  much  of  the  fact  that  deceased  had  'punched  out' 
on  the  time  clock  and  that  she  was  dressed  for  the  street;  hence, 
it  is  said,  the  finding  is  not  sustained  that  she  met  death  in  the 
course  of  her  employment  from  an  accident  arising  out  of  it.  This 
ov.-rlooks  some  persuasive  testimony  given  by  the  assistant  man- 
ager of  the  employer,  to  the  effect  that  deceased  had  no  stated 
hours  of  work,  but  was  practically  on  duty  all  the  time,  as  he  put 
it,  '24  hours  in  the  day;'  that  she  used  her  own  discretion  as 
to  the  time  within  which  she  was  to  do  that  which  was  expected 
of  her,  that  the  wearing  of  the  uniform  was  not  obligatory  for  her,' 
and  that  she  was  not  required  to  punch  the  time  clock,  for  her 
wages  were  not  paid  upon  its  record.  The  inference  is  near  at 
hand  that  she  was  at  the  moment  of  the  accident  engaged  in  her 
work,  endeavoring  to  ascertain  whether  the  doors  of  the  elevator 
she  was  riding  on  locked  properly.  It  seems  their  defective  con- 
dition in  this  respect  was  the  direct  cause  of  her  death."" 

A  traveling  salesman  slipped  on  an  icy  sidewalk  and  sustained  a 
compound  fracture  of  the  upper  part  of  the  femur.  In  holding 
that  the  accident  arose  out  of  the  employment,  the  court  said: 
"The  localities  to  which  he  was  sent  in  the  discharge  of  the  duties 
of  his  employment  constituted  the  place  or  places  in  which  he  was 
required  to  work.  By  reason  of  his  employment  he  was  at  the 
place  where  he  was  injured.  He  was  where  his  employment  took 
him,  and  the  hazard  of  the  icy  street  was  incidental  to  such  em- 
ployment. This  proposition  is  not  changed  by  the  fact  that  the 
public  generally  in  that  vicinity  was  exposed  to  the  hazards 
of  the  icy  street."58 

An  insurance  agent  was  injured  while  riding  with  a  prospective 
customer,  who  invited  him  to  make  a  trip  in  an  automobile.  Be- 
lieving he  could  further  his  employer's  business  thereby  he  ac- 
companied him.  In  reversing  an  award  the  court  said:  "The 

57.  State  ex  rel.  Radisson  Hotel  v.  District  Court  of  Henuepin  County; 
143  Minn.  14*.  172  N.  W.  897,  (1919),  18  N.  C.  C.  A.  1033:  In  re  Toward  C. 
Smith,  3rd    A.  R.  U.  8.  C.  C.  175. 

58.  In  re  Harraden,  64  Ind.  App.  — ,  118  N.  E.  142,  1  W.  C.  L.  J.  338,  15 
N.  C.  C.  A.  230. 

555 


§  269  WORKMEN'S  COMPENSATION  LAW 

field  of  Hewitt's  (claimant's)  employment,  measured  and  limited, 
not  by  material  space,  but  by  his  ability  to  find,  interest  and  retain 
as  customers,  persons  interested  in  providing  for  the  whole  or 
partial  future  independence  of  themselves  or  those  dear  to  them, 
in  a  sense  was  boundless.  The  time  for  work  and  the  manner  and 
method  to  be  followed  in  its  successful  pursuit,  necessarily  rested 
in  the  judgment  of  the  agent,  founded  upon  his  experience  and 
skill.  Tn  going  to  Providence,  Rhode  Island,  the  agent  plainly 
did  not  leave  the  field  within  which  he  was  authorized  to  work 
for  his  employer;  nor  in  availing  himself  of  the  opportunity  for 
"legitimate  persuasion  granted  to  him  by  Pierce  (the  prospective 
customer),  did  he  violate  any  express  or  implied  condition  of 
his  employment?  In  the  prosecution  of  the  business  of  soliciting 
insurance  Hewitt  was  independent.  While  authorized  and  ex- 
pected to  go  where  there  was  any  reasonable  prospect  of  securing 
a  customer,  his  time  and  his  method  of  procedure  was  his  own. 
He  might  travel  on  foot,  on  horseback,  by  trolley,  train  or  automo- 
bile. He  might  write,  telephone  or  telegraph.  He  was  wholly  free 
as  to  time,  place  or  weather.  Under  such  circumstances,  when 
one  accepts  an  invitations  to  ride,  an  injury  received  is  not 
'occasioned  by  the  nature  of  the  employment.'  The  danger  inci- 
dent to  the  use  of  an  automobile  is  not  a  'causative  danger  pe- 
culiar to  the  work,'  but  is  a  risk  which  is  common  to  all  persons 
using  one.  The  injury  cannot  be  said  reasonably  to  have  been 
contemplated  as  the  result  of  the  exposure  of  the  employment."59 

Where  an  insurance  agent  fell  down  a  stairway  while  going  from 
door  to  door  making  collections,  it  was  held  that  the  injury  arose 
out  of  and  in  the  course  of  the  employment.60 

Where  a  gas  Company's  employee's  work  was  not  limited  to 
any  fixed  hours,  and  consisted  of  miscellaneous  outside  jobs,  con- 
tinuous in  their  nature,  such  as  reading  meters,  shutting  off 
gas  when  patrons  ceased  using  it,  collecting  rents,  etc.,  it  was 
held  that  he  was  under  the  protection  of  the  act  at  all  times 
except  when  at  home.  Therefore  disability  caused  by  a  collision 

59.  Hewitt's  Case,  225  Mass.   1,  113  N.   E.   572,  L.  R.   A.  1917B,  249: 
Note;   For  further  ca^es  regarding  salesmen,  see  Street  Accidents. 

60.  Refuge  Assurance  Co.  v.  Millar,  49  Scot  L.  R.  67,  5  B.  W.  C.  C.  522. 
556 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    269 

between  his  mortorcycle  and  an  automobile  in  the  street,  when  he 
was  on  his  way  home  and  not  actually  engaged  in  the  performance 
of  a  service  of  his  employment  at  the  specific  time  and  place  of 
the  accident,  was  held  to  have  arisen  out  of  and  in  the  course 
of  his  employment.  Compensation  was  allowed 

Where  a  policeman  was  killed  by  being  struck  by  a  railroad 
train,  after  working  hours,  while  on  bis  way  home,  it  was  held  that 
in  the  absence  of  any  evidence  to  show  that  the  policeman  was 
executing  some  orders  emanating  from  his  superiors,  or  performing 
some  duty  of  his  own  initative,  which  in  either  case,  under  the 
t-ity  ordinance,  would  bring  him  within  the  protection  of  the 
compensation  act,  it  cannot  be  presumed  that  at  the  time  he  wras 
killed  he  was  still  in  the  line  of  duty.  Such  presumption  arises 
only  when  the  accident  occurs  during  the  regular  hours  of  duty. 
To  hold  otherwise  would  be  arriving  at  a  conclusion  based  merely 
on  guess  or  conjecture  which  will  not  be  permitted.  The  accident 
not  having  arisen  out  of  nor  in  the  course  of  the  employment,  com- 
pensation was  denied.82 

Applicant  was  employed  as  a  police  judge,  and  was  allowed 
to  devote  that  portion  of  his  time  not  required  in  performing  hi- 
duties  as  police  judge,  to  private  practice.  In  denying  compensa- 
tion, for  an  injury  sustained  as  a  result  of  being  struck  by  an  au- 
tomobile, while  on  his  way  to  his  private  office,  it  was  held  that  the 
,p  rident  did  not  arise  out  of  or  in  the  course  of  his  employment. 
Though,  by  the  terms  of  his  employment,  an  employee  is  re- 
quired to  be  ready  to  perform  certain  duties  at  any  hour  of  the 
day  or  night,  it  does  not  follow  that  every  accidental  injury  which 
he  may  receive  during  the  course  of  the  twenty-four  hours  arises 
out  of  his  employment.  To  have  all  the  requisites  for  com- 
pensation present,  it  is  necessary  ih:it  the  employee  be.  in  : 
at  the  time  of  the  injury,  discharging  some  of  the  duties  which  he 
is  employed  to  perform." 

61.  Ferguerson  v.  Royal  Indemnity  Co.,  1  Cal..  Ind.  A.  C.  D.    (1914).  8. 
7  N.  C.  C.     A.  414. 

62.  In  re  Lyraan,  Ohio  Ind.  Conim.  (1914),  7  N.  C.  C.  A.  41:!. 

63.  Gallup  v.  City  of  Pomona.  1  Cal.   I.  A.  C.   D.    (1914)    6.  7  N.  C. 
C.  A.  411. 

557 


§  270  WORKMEN'S  COMPENSATION  LAW 

It  was  held  in  a  California  case  that  compensation  would  not 
be  awarded  an  employee  who,  purely  for  his  own  purpose,  leaves 
his  place  of  employment  before  his  day's  work  is  finished  and, 
several  hours  later,  is  injured  upon  the  public  streets  when  re- 
turning to  his  place  of  work  for  the  purpose  of  attending  to  some 
unfinished  duties.  The  employee  was  expected  to  respond  to  emer- 
gency calls  by  telephone  out  of  regular  hours,  though  it  does  not 
appear  that  he  was  responding  to  such  calls.  The  court  quoted 
with  approval  the  following  from  an  earlier  ease:  "The  right  to 
an  award  is  not  founded  upon  the  fact  that  the  injury  grows  out 
of  and  is  incidental  to  his  employment.  It  is  founded  upon  the 
fact  that  the  service  he  is  rendering  at  the  time  of  the  injury 
grows  out  of  and  is  incidental  to  the  employment.  Therefore  an 
employee  going  to  and  from  his  place  of  employment  is  not  ren- 
dering any  service,  and  begins  to  render  such  service  only  when,  as 
has  been  said,  arriving  at  his  place  of  employment  he  proceeds  to 
use  some  instrumentality  provided,  by  means  of  which  he  im- 
mediately places  himself  in  a  position  to  perform  his  task."04 

Where  a  factory  employee,  who  was  obliged  to  look  after  fires 
and  lights  on  Sunday  and  to  see  that  everything  was  in  working 
order  for  Monday,  was  injured  while  cranking  his  own  car  to  go 
from  the  factory  to  a  garage  to  get  spark  plugs  for  a  truck  which 
he  would  drive  for  his  employer  on  Monday,  it  was  held  that  the 
injury  arose  out  of  and  in  the  course  of  the  employment.05 
* 

§  270.    Seamen   and    Others   Employed    on  Vessels    Injured 

When  Getting  On  and  Off  Vessels. — A  captain  of  a  tugboat  was 
discharged  because  of  intoxication  and  afterwards  his  body  was 
found  in  the  vicinity  of  the  pier.  The  court,  in  denying  com- 
pensation, said  that  if  it  be  considered  that,  after  discharge  of 
deceased,  his  employment  continued  a  reasonable  length  of  time 
to  enable  him  to  remove  his  belongings  from  the  boat,  it  must  never- 
theless have  ceased  immediately  upon  his  leaving  it.  To  infer 
that  he  fell  into  the  water  while  in  the  act  of  leaving  the  boat,  or 
prior  thereto,  rather  than  after  leaving  it  he  fell  from  the  dock, 

64.  Fidelity  &  Casualty   Co.  of  N.   Y.  et  al.  v.  Indus.   A.  C.  of  Cal.,  — 
CaL— ,  192  Pac.  166,  6  W.  C.  L.  J.  640. 

65.  Martin  v.  Henry  Card  &  Co.,  183  N.  Y.  S.  88,  6  W.  C.  L.  J.  484. 
558 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.         §    270 

while  proceeding  along  its  edge  in  an  intoxicated  condition,  would 
be  basing  an  award  on  mere  conjecture.  Therefore,  there  was  no 
proof  that  the  deceased  came  to  his  death  through  an  accident 
arising  in  the  course  of  his  employment.06 

A  seaman  was  drowned  when  returning  to  the  ship,  after  pur- 
chasing provisions  for  his  own  use.  It  was  held  that  at  the  time 
the  seaman  met  his  death  he  was  not  engaged  in  the  ship  business 
nor  in  any  duty  owed  to  his  employer,  therefore  the  accident  did 
not  arise  out  of  and  in  the  course  of  his  employment.*7 

Where  a  cook  on  board  a  tugboat  was  drowned  when  he  fell 
overboard  from  a  wharf,  to  which  his  boat  was  moored,  he  having 
gone  on  shore  to  purchase  supplies,  a  part  of  his  duty,  and 
returning  with  some  of  them  in  his  possession,  it  was  held  that 
he  was  injured  in  the  course  of  his  employment,  because  at  the 
time  of  his  death  he  was  doing,  at  a  time,  at  a  place  and  of 
a  nature,  the  duties  which  his  employment  reasonably  called  him 
to  perform.  His  accident  was  a  natural  incident  to  his  work,  the 
risk  was  one  occasioned  by  the  nature  of  his  employment,  tne  in- 
jury was  traceable  to  the  nature  of  his  work  and  to  the  risks  to 
which  his  employer's  work  exposed  him.68 

An  employee  on  a  boat  reported  for  duty  at  5  o'clock  and  was 
informed  that  the  boat  would  not  leave  until  11  p.  m.,  and  was 
given  permission  to  go  ashore.  \Vhen  returning  to  the  boat,  and 
while  going  through  their  yard  to  board  the  boat,  he  fell  and  sus- 
tained injuries.  The  court  said:  "If  Carter  left  the  boat  by  per- 
mission, and  while  returning  to  it  and  his  work  he  was  injured 
upon  his  master's  premises,  and  while  he  was  proceeding  over  a 
not  unreasonable  route,  and  while  he  was  at  a  place  where  he  had 
a  right  to  be,  and  within  the  period  of  his  employment,  which 

66.  In  re  Whalen,  186  App.  Div.  190,  173  N.  Y.  Supp.  856  (1919)  18  N. 
C.  C.   A.  1037;    Spencer  v.   Liberty    (Owners   of),    (1917).    \V.    C.  &    Ins. 
Rep.  293.  16  N.  C.  C.  A.  913. 

67.  Parker   v.   Black   Rock    (Owners  of),    (1915),   W.   C.  &    Ins.   Rep. 
369,  15  N.  C.  C.  A.  259;     In  re  Theodore  E.  Perin,  3rd    A.  R.  U.  S.  C.  C. 
176. 

68.  •  Westman's  Case,  118  Me.  133,  (1919).  106  All.  532,  4  W    C.  L    J. 
213. 

559 


§  270  WORKMEN'S  COMPENSATION  LAW 

began  at  5  o'clock,  he  was  injured  in  the1  course  of  his  employment 
and  his  employment  was  the  proximate  cause  of  his  injury."69 

A  dredge  employee  was  drowned  when  returning  from  a  trip 
ashore  on  his  own  business.  In  holding  that  the  accident  did  not 
arise  out  of  and  in  the  course  of  the  employment,  the  court  said : 
"The  controlling  fact  is  that  he  had  been  ashore  solely  for  pur- 
poses of  his  own,  and  lost  his  life  before  he  'returned  to  his 
place  of  employment  or  to  the  premises  of  his  employer,  and  be- 
fore he  had  gained  access  to  the  boat,  which  was  to  carry  him  from 
the  dock  to  the  dredge."70 

A  seaman  was  drowned  while  returning  from  attending  a  wedding 
on  shore.  It  was  found  that  the  boat  used  in  reaching  the  shore 
was  supplied  by  a  fellow  seaman,  and  was  not  provided  by  or  with 
the  knowledge  of  his  employers,  and  that  the  accident  happened 
while  the  workman  was  outside,  and  before  he  had  returned  to, 
the  ambit  of  his  employment.71 

A  seaman  was  drowned  while  leaving  his  boat  to  go  ashore  to 
collect  the  purchase  money  of  rope  sold  by  the  defendants.  The 
court  held  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment  since  the  deceased  was  going  ashore  to  perform  a 
duty  owed  to  his  employer.72 

A  chief  engineer  aboard  a  vessel  went  ashore  on  business  of  his 
own  and  with  permission.  "When  returning  he  made  his  way  along 
the  quay  towards  a  bridge  which  he  had  to  cross  to  reach  his 
vessel.  He  missed  the  bridge  and  fell  from  the  pier  into  the  water 
and  was  drowned.  In  holding  that  the  accident  did  not  arise  out 
of  and  in  the  course  of  his  employment,  the  court  said:  "If  the 
employee  had  reached  the  ship  or  ladders  by  which  the  ship  was  to 
be  boarded  he  might  properly  be  taken  to  have  been  directed  to  use 
them  as  being  part  of  the  vessel  on  which  he  was  living  as  an 

69.  Carter  v.  Howe,  92  Conn.  82.  101  Atl.  491,  15  N.  C.  C.  A.  258. 

70.  Bers  v.  Great  Lakes  Dredge  &  Dock  Co.,  173  N.  Y.  App.  Div.  82, 158, 
N.  Y.  Supp.  718,  12  N.  C.  C.  A.  74. 

71.  McLean  v.  David  McBrayne,  (1915),  W.  C.  Ins.  Rep. 

72.  Duck  v.   North   Sea   Steam  Traveling  Co.,  Ltd.,    (1915),  W.  C.  & 
Ins.  Rep.  529,  15  N.  C.  C.  A.  257;     Harman  v.  Crow,  1915  W.  C.  &  Ins. 
Rep.  5S6,  15  N.  C.  C.  A.  258. 

560 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    270 

incident  to  his  employment.  But  was  the  quay  by  which  he  was 
actually  approaching  when  tin;  accident  happened  a  place  where 
he  was  directed  to  be,  or  a  place  for  which  the  employers  had  any 
responsibility  at  all.  It  seems  to  me  that  this  question  ought  on 
broad  principles  to  he  answered  in  the  negative.  Surely  a  street  in 
iiams.LMte  would  not  have  been  such  a  place  in  the  absence  of  spe- 
cial circumstances.  That  is  dear  from  principles  which  have  been 
firmly  laid  down.  In  order  to  make  it  such  a  place  it  would  be 
necessary  to  prove  as  a  special  fact  that  the  engineer  was  directed 
to  use  it  for  some  object  in  which  he  was  employed.  Here  there 
\\as  no  direction.  He  was  allowed  leave  for  his  own  purposes. 

"Was  the  quay,  then,  different  in  this  respect  from  a  street?  It 
is  said  that  it  was,  inasmuch  as  it  was  the  natural  way  of  proceed- 
ing towards  the  place  where  the  ship  was  berthed.  But  a  street 
might  also  have  been  part  of  such  natural  way."73 

A  seaman  was  drowned  while  returning  from  making  purchases 
of  provisions  for  himself,  when  he  fell  from  the  ladder  which  was 
the  only  means  of  access  to  the  ship  from  the  dock.  It  was  held 
that  the  accident  arose  out  of  and  in  the  course  of  employment.74 

An  employee,  who  was  furnished  living  quarters  on  a  boat  by 
the  Government,  was  drowned  while  going  in  a  small  boat  to  get 
fellow  employees  who  had  been  ashore  all  night.  It  was  held  that  the 
injury  causing  death  occurred  in  the  course  of  the  employment.75 

An  engineer  on  a  tugboat,  by  mistake  in  the  location  of  his  own 
boat,  went  to  another  boat,  and  while  attempting  to  reach  his 
own  boat  was  drowned.  It  was  held  that  the  accident  did  not 
arise  out  of  and  in  the  course  of  the  employment.76 

The  general  rule  pertaining  to  seamen  injured  in  leaving  and  re- 
turning to  their  respective  vessels,  is  that  accidents  sustained 

73.  Davidson  &  Co.  v.  M'Robb.   (1918),  A.  C.  304;     Fletcher  v.  "Dut- 
c-hess"  (Steamship  Co.),  1912  W.   C.  A  Ins.   Rep.   16. 

74.  Moore  v.  Manchester  Liners,  Ltd.,  3  B.  W.  C.  C.  527.  (1910)   App. 
Cases  498.  79  L.  J.  K.  B.  1175.  3  N.  C.  C.  A.  269;     Jackson  v.  General 
Steam  Fishing  Co..  Ltd.,  (1909),  App.  Cas.  523,  2  B.  W.  C.  C.  56.  3  N.  C. 
C.  A.  274. 

75.  In  re  Claim  of  Bennie  House,  Op.  Sol.  Dep.  C.  &  L.  (1915).  325 

76.  Ocean  Ace.  and  Guar.  Corp.  v.  Indus.  Ace.  Com.,  173  Cal.  313.  159 
Pac.  1041. 

561 
W.  C.— 36 


§  271  WORKMEN'S   COMPENSATION   LAW 

after  reaching  the  pier  on  leaving  the  ship  and  before  leaving  the 
pier  to  board  the  ship,  or  attempting  to  board  the  ship  by  a 
dangerous  way,  do  not  arise  out  of  and  in  the  course  of  the  em- 
ployment.77 

Where  a  seaman  is  rightfully  away  from  the  ship,  or  away  on 
business  of  the  ship,  and  is  injured  when  leaving  or  returning  to 
the  ship,  while  using  the  usual  means  of  boarding  the  vessel,  the 
accident  arises  out  of  and  in  the  course  of  the  employment.78 

§  271.  Away  From  Regular  Place  of  Employment  on  Business 
of  The  Employer. — A  cook  on  a  boat  was  drowned  while  re- 
turning with  purchased  provisions.  It  was  part  of  his  duty  to 
look  after  the  securing  of  necessary  provisions.  In  holding  that 
the  accident  arose  out  of  and  in  the  course  of  the  employment  the 

77.  O'Brien  v.  Star  Line,  (1908),  45  Scotch  L.  R.  935;     1  B.  W.  C.  C.  177; 
Martin  v.  Fullerton  &  Co.,  (1908),  45  Scotch  L.  R.  812,  1  B.  W.  C.  C.  168; 
Gilbert  v.     Owners   of   "Nizan,"    (1910),   3   B.  W.    C.  C.     455,    Hewitt   v. 
"Dutchess,"  (1910),  102  L.  T.  204;  3  B.  W.  C.  C.  239;  Fletcher  v.  "Dutch- 
ess"    Owners    of,    (1911),    4,    B.   W.    C.    C.    317;    Kelley    v.     Owners     of 
"Foam   Queen,"    (1910),   3   B.  W.   C.   C.   113;     Nolan   v.   Porter  &   Sons, 
(1909),  2  B.    W.  C.  C.    106;  Kitchenham   v.  Owners    of  S.  S.    "Johannes- 
burg,"   (1910),  4  B.  W.  C.  C.  311;     Mitchell  v.  S.  S.  "Saxon,"    (1912),  5 

B.  W.  C.  C.  623:  Halvorsen  v.  Slavesen,  (1911),  49  Sc.  L.  R.  27,  5  B.  W. 

C.  C.  519;     Frith  v.  S.  S.  "Louisianian,"  (1912),  5  B.  W.  C.  C.  410;     Big- 
gart  v.  S.  S.  "Minnesota,"   (1911),  5  B.  W.  C.  C.  68;     Hyndman  v.  Craig 
&  Co.,  1910.  44  Irish  L.  T.  11,  4  B.  W.   C.  C.   438;  McDonald  v.   Owners 
of  Steamship  "Banana,"   (1908),  1  B.  W.  C.  C.  185;  Craig  v.  S.  S.  "Calabria," 
(1914),  Sc.   Court  of   Session,   7  B.  W.  C.   C.  932;  Murray  v.  Allan  Bros. 
&  Co.,  (1913),  6  B.  W.  C.  C.  215;     Griggs  v.  S.  S.  "Gamecock,"   (1913),  6 

B.  W.  C.  C.  15;     Lee  v.  Steamship  "St.  George,"  (1914),  7  B.  W.  C.  C.  85. 

78.  Boucher  v.  Olsen  &  Mahoney  Steamship  Co.,  1  Cal,  I.  A.  C.  Part 
2,  248;  Countryman  v.    Newman,  (1916),  7  N.    Y.  St.  Dep.  Rep.  421;  Kea- 
ron  v.   Kearon,  (1911),    45  Sc.  L.  T.  96,  4  B.  W.   C.  C.  435;  Trodden  v.  J. 
McLennard  &  Sons,    (1911),  4  B.  W.  C.   C.  190;  Richardson    v.  Owners  of 
ship  "Avonmore,"   (1911),  5  B.  W.  C.  C.  34;     Keyser  v.  Burdick  &  Co., 
(1910),  4  B.  W.  C.  C.  87;     Leach  v.  Oakley,  Street  &  Co.,   (1910),  4  B.  W. 

C.  C.  91;     Jackson  v.  General  Steam  Fishing  Co.,  (1909),  A.  C.  523,  101  L. 
T.  401,  2  B.  W.  C.  C.  56;     Moore  v.  Manchester  Liners,    (1908),  3  B.  W. 
C.  C.  527;  Canavan  v.  Owners  of  S.  S.  "Universal,"  (1910),  3  B.  W.  C.  C. 
355;     Robertson  v.  Allan  Bros.  &  Co.,  (1908),  98  L.  T.  821,  1  B.  W.  C.  C. 
172;     Webber  v.  Wansborough  Paper  Co.,  (1914),  7  B.  W.  C.  C.  795. 

562 


ACCIDENT  ARISING  OUT  DP  COURSE  OP  EMPLOYMENT.         §    271 

court  quoted  the  following  general  rules:  "The  Massachusetts 
court  in  McNicol's  Case,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A. 
1916A,  306  tersely  said:  'An  injury  is  received  "  in  the  course  of" 
the  employment  when  it  comes  while  the  workman  is  doing  the 
duly  which  he  is  employed  to  perform.'  Westman,  at  the  time 
of  his  death,  according  to  the  record,  was  doing,  at  a  time,  at  a 
place  and  of  a  nature,  the  duties  which  his  employment  reason- 
ably called  him  to  perform.  His  injuries  were  received  in  the 
co'irse  of  his  employment.  The  great  weight  of  authority  sustains 
the  view  that  these  words  'arising  out  of  mean  that  there  must 
be  some  causal  connection  between  the  conditions  under  which 
the  employee  worked  and  the  injury  which  he  received.  West- 
man's  accident  was  a  natural  incident  of  his  work,  the  risk  was 
one  occasioned  by  the  nature  of  his  employment,  the  injury  was 
traceable  to  the  nature  of  his  work  and  to  the  risks  which  his 
employer's  work  exposed  him.  We  feel  assured  that  the  fatality 
arose  out  of  the  employment."79 

A  teamster  who  slipped  and  fell  on  the  door  step  of  a  customer, 
while  collecting  a  load,  was  held  to  have  sustained  an  accident 
arising  out  of  and  in  the  course  of  the  employment.80 

Applicant  went  ashore  on  business  of  the  ship,  and  after  ac- 
complishing the  object  of  his  errand  started  for  the  docks.  A 
train  car  passed,  which  he  believed  to  be  going  to  the  docks  and 
tin-  last  car  of  the  evening,  and  it  being  his  duty  to  get  back, 
he  tried  to  board  the  moving  car  and  fell  under  it,  sustaining  a 
•  •rushed  foot.  In  denying  compensation,  the  court  held  that  the 
applicant  had  taken  upon  himself  an  added  risk  or  peril  not  in- 
cident to  his  employment,  and,  therefore,  that  the  accident  did 
not  arise  out  of  the  employment.81 

An  employee  engaged  in  hauling  coal  discovered  that  there  was 
no  chute  on  the  wagon,  and  in  accordance  with  instruction  crossed 
the  street  to  telephone  in  for  one.  He  was  struck  by  a  car  when 

79.  Westman's   case,    118    Me.    133,   106   All.    532,    4    W.  C.  L.  J.  213. 

80.  Heinze  v.  Indus.  Com.,  228  111.  342,  123  N.'  E.  598,  4  W.  C.  L.  J.  361. 

81.  Byrne  v.  Larrlnaga  Steamship  Co.,  Ltd.,  (1918),  W.  C.  &  Ins.  Rep. 
319,  18  N.  C.  A.  A.  1047. 

563 


§  271  WORKMEN'S  COMPENSATION  LAW 

crossing  the  street.     The  court  held  that  the  accident  arose  out 
of  and  in  the  course  of  the  employment.82 

Two  employees  were  out  on  business  of  their  employer,  and 
their  automobile,  through  the  negligence  of  the  inexperienced 
driver,  collided  with  another  car,  resulting  in  the  death  of  one  of 
the  employees.  It  was  not  shown  that  the  employer  had  designated 
the  one  who  was  to  drive  the  machine.  The  court  said:  "We  con 
elude  that  the  act  of  Showalter  in  driving  the  automobile  at  the 
time  in  question  was,  in  view  of  his  inexperience  in  the  handling 
of  that  particular  machine,  a  mere  act  of  negligence  which  was 
the  proximate  cause  of  the  injury,  but  which  act  in  no  way  inter- 
posed as  a  bar  to  prevent  an  award  of  compensation  being  made. '  '83 

Where  an  employee  had  no  regular  hours  of  employment  and 
was  ordered  to  convey  other  employees  to  an  outside  job,  and  on  his 
way  back  the  automobile  skidded  and  turned  over,  resulting  in 
the  death  of  the  employee,  it  was  held,  that  since  he  was  at  the  timp 
acting  under  the  orders  of  his  employer  the  accidental  injury  and 
death  arose  out  of  and  in  the  course  of  the  employment.84 

A  teamster  was  killed  by  being  struck  by  a  passing  automobile, 
when  he  got  down  from  his  wagon  to  collect  bills  scattered  by  the 
wind,  while  he  was  on  an  errand  making  deliveries.  In  affirming 
an  award  for  compensation  the  court  said:  "In  the  case  at  bar 
the  employment  of  Keaney  to  drive  a  team  through  the  public 
streets  and  deliver  goods  required  of  him  every  reasonable  and 
lawful  effort  to  accomplish  his  task.  His  work  did  not  require  him 
to  stay  on  his  wagon.  He  was  bound  in  the  performance  of  his 
duty  to  use  the  street  to  deliver  goods,  to  regain  package  or  papers 
fallen  from  the  wagon,  as  also  to  care  for  his  horses,  adjust  the 
harness  and  repair  the  wagon,  if  necessary.  It  is  manifest  he 
might  be  injured  while  in  the  street  in  the  performance  of  his 

82.  Consumers  Co.  v.  Cieslik,  — Ind.  App.— ,  121  N.  E.  832   (1919),  18 
N.  C.  C.  A.    1040,  3  W.  C.   L.  J.  620;    In   re  Samuel  M.  Mclntire,    2nd  A. 
R.  U.  S.  C.  C.  242. 

83.  Maryland  Gas.  Co.  v.  Indus.  Ace.  Com.  Cal.,  39  Cal.  App.  229,  178 
Pac.  542,  18  N.  C.  C.  A.  1040,  3  W.  C.  L.  J.  577. 

84.  Rogers  v.  Rogers,  —Ind.  App.—,  122  N.  E.  778,    (1919),  18  N.  C. 
C.  A.   1038,  4  W.  C.  L.  J.  58. 

564 


ACCIDENT  ARISING  OUT  OP  COURSE  Of  EMPLOYMENT.        §    271 

duty,  and  it  is  plain  his  employment  therein  exposed  him  to  the 
particular    iii.jury  he  received."88 

A  helper  on  a  truck  was  killed  \\h\\e  returning  from  making 
a  delivery,  when  he  was  jolted  from  a  running  board,  where  he 
placed  himself  in  order  that  he  might  make  room  for  two  girls, 
whom  they  picked  up  on  the  road.  It  was  argued  that  beeauso 
deceased  gave  up  his  place  of  safety  in  order  that  he  might  accom- 
modate others,  and  not  for  the  purpose  of  furthering  his  employer's 
business,  he  thereby  departed  from  the  course  of  his  employment. 
The  court  of  common  pleas,  confirming  the  award,  said  that  if 
deceased  had  been  injured  while  on  the  ground  for  the  pur; 
of  taking  passengers,  a  different  question  would  have  been  pre- 
sented ;  but  as  he  resumed  his  journey,  he  was  undoubtedly  in  the 
course  of  his  employment  thereafter,  regardless  of  the  place  whne 
he  chose  to  place  himself  on  the  truck.  Affirming  the  judgment  the 
court  said:  "When  the  husband  and  father  of  appellees  was  jolt- 
ed from  the  truck  of  appellant,  he  was  in  the  course  of  his  em- 
ployment with  it.  How  he  happened  to  be  sitting  where  he  was 
at  the  time  he  was  jolted  from  the  truck  is  utterly  immaterial : 
and  the  judgment  is  affirmed  on  the  opinion  of  the  learned  court 
below  sustaining  the  action  of  the  referee  and  the  Compensation 
Board."" 

Wliere  an  employee's  work  required  that  he  cross  a  street  to 
mail  letters,  and  while  so  doing  he  was  struck  by  a  pas-ing  automo- 
bile, the  court  in  holding  that  the  accident  arose,  out  of  and  in 
the  course  of  the  employment,  said:  "The  cond'.t'ons  under  which 
the  work  here  was  required  to  be  performed  took  Roberts  upon 
the  streets  in  the  course  of  his  employment  in  exactly  the  same 
manner  as  that  in  which  a  factory  hand  is  subject  to  the  dangers 
of  the  factory  while  in  the  course  of  his  empl  >yment.  There  is 
a  direct  causal  connection  here  between  the  fact  trat  the  man  was 
on  the  street  and  the  fact  that  he  was  injured.  The  accident  was 
a  natural  accident  of  his  work  resulting  from  th  •  « •xpoMire  by 

85.  Keaney's  case,  232  Mass.  532,  122  N.  E.  739.  (1919),  18  N.  C.  C.  A. 
1039,  4  W.  C.  L.  J.  103. 

86.  Siglin  v.  Armour  &  Co.,  261  Pa.  30,  103  Atl.  991,  16  N.  C.  C.  A.  895, 
2  W.  C.  L.  J.  556. 

565 


§  271  WORKMEN'S  COMPENSATION  LAW 

the  necessity  of  his  going  upon  the  street  while  performing  such 
work.  He  was  not  exposed  to  this  danger  of  the  street  'apart 
from  his  employment. '  The,  causative  danger  was  peculiar  to 
the  work,  in  that,  had  he  not  been  on  the  street  in  the  course  of  his 
duty,  he  would  not  have  been  injured."87 

An  employee,  engaged  in  delivering  a  window  frame,  accepted 
a  proffered  lift  from  a  boy  with  a  wagon  and  pony.  The  pony 
gave  a  sudden  lurch,  throwing  the  employee  from  the  cart  r.nd 
injuring  him.  It  was  held  that  the  applicant  was  doing  work  with- 
in the  scope  of  his  duty  at  the  time  of  the  accident  and  that  the 
accident  was  due  to  a  special  risk  incident  to  the  employment. 
Therefore  the  accident  arose  out  of  and  in  tho  course  of  the 
employment.88 

Where  an  employee's  duties  required  him  to  meet  trains  at  a 
station,  and  while  there  he  slipped  and  fell  on  ice,  striking  a  rail 
and  breaking  his  leg,  it  was  held  that  the  accident  arose  out  of  the 
employment,  the  court  saying:  "The  conclusion  that  I  have  come 
to  is  this — that  it  is  a  complete  error  to  attribute  this  accident 
merely  to  what  was  called  a  'snow  risk,'  *  *  *.  A  railway  station 
is,  in  one  sense,  a  public  place  to  which  all  members  of  the  public 
have  a  right  of  access.  *  *  *  To  my  mind  a  railway  station  is,  of 
itself,  a  place  where  those  who  are  employed  in  connection  with  it 
necessarily  run  risks  which  are  not  common  to  members  of  the  public 
in  the  ordinary  sense  at  all.  I  can  scarcely  conceive  that  if  a 
railway  porter  fell  from  the  platform  to  the  rails,  and  was  either 
injured  by  the  fall  or  run  over  by  an  engine,  he  would  not  be 
entitled  to  say,  apart  from  special  circumstances,  that  the  acci- 
dent arose  out  of  the  employment;  and  so  it  would  seem  to  me, 
subject  to  a  point  which  I  conceive  to  be  settled  by  authority  in 
the  workman's  favor,  would  be  the  position  of  the  claimant  m 
this  case."89 

87.  Globe  Indem.  Co.  v.  Indus.  Ace.  Comm.  of  Cal.,  36  Cal.  App.  280,  171 
Pac.  1088,  16  N.  C.  C.  A.  907,  2  W.  C.  L.  J.  31;  Miller  v.  Taylor,  173  App. 
Div.  865,  159  N.  Y.  S.  999,  12  N.  C.  C.  A.  192. 

88.  Mullinger  v.  Bidewell,  (1917),  W.  C.  &  Ins.  Rep.  51,  15  N.  C.  C.  A. 
252. 

89.  Blake  v.  Ramsey,  (1917),  W.  C.  &  Ins.  Rep.  84,  51  Ir.  Law  Times 
Rep.  6,  15  N.  C.  C.  A.  222. 

566 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    271 

A  porter  was  delivering  a  parcel,  and  upon  arriving  at  his 
destination  he  failed  to  find  anyone  in,  and  sat  down  to  rest  While 
noting  lie  fell  down  into  the  areaway  below,  sustaining  juries 
from  which  he  died.  It  was  held  that  there  was  no  evidence 
tending  to  show  that  the  deceased  was  subjected  to  any  unusual 
risks,  and  that  the  accident  did  not  arise  out  of  and  in  the  course 
of  the  employment.80 

Where  a  section  foreman  was  killed  after  mailing  pay  checks 
in  accordance  with  his  duties,  and  while  returning  home,  where  he 
was  required  to  be  on  call  at  the  time  to  clean  switches,  it  was 
held  that  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment.91 

In  denying  compensation  for  injuries  sustained  while  running 
across  a  street  to  obtain  material  for  his  employer,  the  court  said : 
"I  think  this  is  a  plain  case.  The  man  was  crossing  the  road,  and. 
\\;is  knocked  down  by  a  tramcar.  There  is  no  suggestion  that  he 
\\as  told  to  run  across  the  street.  It  seems  to  me  that  it  is  tho 
common  case  of  a  street  accident  not  in  any  way  arising  out  of 
the  employment."92 

A  railway  policeman  was  struck  by  an  engine  and  killed  when  he 
\\.is  crossing  a  track,  while  returning  from  depositing  cash  boxes 
in  a  bank,  which  wns  part  of  his  duties.  It  was  held  th$t  thei 
;K  i  ident  arose  out  of  the  employment.98 

A  fireman,  employed  in  the  canal  zone,  was  injured  while  per- 
forming service  outside  of  the  territory  which  was  under  the 
control  of  the  United  States.  It  was  held  that  he  was  injured  in 
the  course  of  the  employment.04 

Whore  the  duties  of  an  employee  consisted  in  setting  up  ma- 
chinery and  driving  automobiles  in  his  employer's  business,  and 
he  was  killed  by  the  overturning  of  his  automobile,  it  was  held 

90.  Kettle  v.  McKay  ft  Ryland,  (1916),  W.  C.  ft  Ins.  Rep.  297,  15  N.  C. 
C.  A.  220. 

91.  Papinaw  v.  Grand  Trunk  Ry.  Co.  of  Canada,  155  N.  W.  545,  12  N. 
C.  C.  A.  243,  189  Mich.  441. 

92.  Symmonds  v.  King.  (1915),  W.  C.  &  Ins.  Rep.  282. 

93.  Grant   v.  Glasgow   ft  So.   Ry.  Co.,   45   So.   L.   R.   128,    (1907),   1   B. 
W.  C.  C.  17;  Bett  v.  Hughes,  (1914).  8  B.  W.  C.  C.  362. 

94.  In  re  Claim  of  James  Nellis,  Op.  Sol.  Dep.  C.  ft  L.  (1915).  221. 

567 


§  271  WORKMEN'S  COMPENSATION  LAW 

that  the  accident  arose  out  of  and  in  the  course  of  the  employ- 
ment.05 

Where  a  driver  was  killed  by  falling  material  from  a  building 
under  construction  on  a  public  street,  it  was  held  that  the  injury 
arose  out  of  the  employment.96 

Where  an  errand  boy  was  struck  by  a  train  while  traveling  a 
customary  route  on  an  errand  for  his  employer  delivering  checks, 
it  was  held  that  the  accident  arose  out  of  and  in  the  course  cf  em- 
ployment.97 

An  employee  was  killed  when  the  engine  he  was  driving  crashed 
through  a  bridge.  At  the  time  of  the  accident  the  employee  was 
moving  the  engine  from  one  place,  where  he  had  completed  the 
job  he  was  engaged  in,  to  another  place  where  the  engine  was  to 
be  used.  It  was  held  that  the  injury  arose  out  of  and  in  the 
course  of  the  employment.98 

Where  a  construction  foreman  arrived  at  the  place  of  his  em- 
ployment thirty  minutes  prior  to  the  time  for  beginning  work, 
and  proceeded  across  the  street  to  telephone  concerning  the  day's 
work,  the  'phone  being  ordinarily  used  for  that  purpose,  it  was 
held  that  an  injury  sustained  in  crossing  the  street  arose  out  of 
the  employment.  A  reasonable  time  before  and  after  working 
hours. is  allowed  as  included  within  the  term  of  employment,  -md 
the  previous  acquiescence  of  the  employer  in  the  practice  of  using 
public  telephones  justified  the  foreman  in  using  it  upon  this 
occasion.99 

Where  the  master  of  a  schooner  was  ashore  on  ship's  business, 
and  slipped  upon  an  orange  peeling  and  fell,  sustaining  injuries 
to  his  hip  of  a  permanent  character,  it  was  held  that  while  the 
accident  occurred  in  the  course  of  the  employment  it  did  not  arise 

95.  State  ex  rel.  Nelson  Spelliscy  Co.  v.  District  Court  of  Meeker  Coun- 
ty, 128  Minn.  221,  150  N.  W.  623,  11  N.  C.  C.  A.  636. 

96.  Mahowald  v.  Thompson-Starrett  Co.,  134  Minn.  113,  158  N.  W.  913. 

97.  Chicago  Packing  Co.  v.  Industrial  Bd.,  282  111.  497,  118  N.  E.  727. 

98.  Pace  v.  Appanoose  County,  184  Iowa  498,  168  N.  W.  916,  2  W.  C. 
L.  J.  884. 

99.  Mueller  Const.  Co.  v. 'Indus.  Bd.  of  111.  et  al.,  283  111.  148,  118  N.  E. 
1028,  1  W.  C.  L.  J.  943. 


568 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.         §    271 

out  of  the  employment,  but  was  a  risk  to  which  the  commonalty 
was  exposed.  Compensation  was  denied.1 

Whore  a  salesman  slipped  and  fell  while  on  the  way  to  the  homo 
of  a  prospective  customer  and  fractured  his  shoulder,  the  injury 
was  held  to  have  arisen  out  of  and  in  the  course  of  his  employ- 
ment.2 

Compensation  was  awarded  for  an  injury  received  by  a  workman 
;is  lit-  was  returning  to  his  employer's  office  after  completing  .1 
piece  of  work  for  the  employer  at  another  place.3 

Where  a  repair  man  on  cars  was  injured  when  he  went  to 
secure  a  measurement  from  a  car  in  the  yards,  his  injuries  wen- 
caused  by  an  accident  arising  out  of  the  employment.4 

In  a  Kansas  case  it  was  said:  "The  court  concludes  that  tho 
word  'about,'  as  applied  to  a  mine,  fixes  the  locality  of  the  accident 
for  which  compensation  may  be  recovered,  and  that  the  accident 
must  occur  in  such  close  proximity  to  the  mine  that  it  is  within 
the  danger  /.one  necessarily  created  by  those  peculiar  hazards  to 
workmen  which  inhere  in  the  business  of  operating  the  mine.  I :' 
the  accident  occurs  outside  this  /one,  the  distance  from  the  mine, 
whether  very  near  or  very  far,  is  immaterial.  In  this  case  the 
workman  was  a  messenger  who  had  left  one  mine  on  an  errand 
and  had  not  arrived  at  the  other.  lie  was  injured  on  the  premises 
of  the  railway  company,  which  lay  between  the  two  mines."5 

Where  an  employee  of  a  commission  merchant,  while  crossing  a 
street,  during  working  hours  in  his  working  clothes  to  get  refresh- 
ments in  pursuance  to  a  custom  of  the  employees  was  injured,  while 
talking  to  a  prospective  customer.  It  was  held  the  accident  arose 
out  of  and  in  the  course  of  his  employment." 

1.  Chapman  v.  Pearn  (owners  of),  9  B.  W.  C.  C.  224,  12  N.  C.  C.  A.  368. 

2.  Gaffney  v.  Travelers'  Ins.  Co.,  Mass.  W.  C:  C..  (1913),  339.    7  N.  r.  C. 
A.  429. 

3.  Coeman    v.   Quilfoy   Cornice   Works,    (Cal.).    1    Nat.   Comp.   Journ. 
(1914),  18,  V  N.  C.  C.  A.  429. 

4.  Meyers  v.  La.  Ry.  &  Nav.  Co.,  —  La.  — ,  74  So.  256,  A  1  W.  C.  L.  J. 
705. 

5.  Bevard  v.  Skidmore-Patterson  Coal  Co..  —  Kan.  — ,  165  Pac.  657,  A  1 
W.  C.  L.  J.  597. 

6.  State  Industrial  Comm.  v.  Voorhees,  —  App.  Div.  — .   (1920),  18,  4 
N.  Y.  S.  888.  7  W.  C.  L.  J.  238. 

569 


§  272  WORKMEN'S  COMPENSATION  LAW 

§  272  Street  Accidents. — Deceased  was  an  engineer  by  pro- 
fession, and  had  no  fixed  hours  of  service.  He  was  sent  out  by 
his  employer  to  examine  gas  burners  and  to  report  back.  Upon 
his  return  he  arrived  .in  the  city  in  the  night,  and  was  struck  by 
an  automobile  and  killed  while  going  home  to  sleep  for  the  night. 
The  court  in  holding  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment  said:  "Since  deceased  was  compelled 
to  return  to  the  city  at  an  hour  when  he  could  not  at  once  commu- 
nicate with  his  superior,  and  had  to  stay  somewhere  until  he  could 
report,  he  cannot  be  charged  with  a  departure  from  his  employ- 
er's service  because,  when  hurt,  he  was  going  to  his  home  for  a 
lodging  rather  than  to  a  hotel;  hence  the  findings  of  the  referee 
are  ample  to  sustain  the  ultimate  conclusion  upon  which  the 
award  of  compensation  rests,  to  the  effect  that  plaintiff's  husband 
met  his  death  by  accident  during  the  course  of  his  employment 
with  the  defendant  company."7 

A  laundry  driver  was  struck  and  injured  by  an  auto  truck 
while  he  was  carrying  laundry  from  a  hotel  to  the  laundry.  He 
had  forgotten  to  collect  it  when  his  team  was  hitched  up,  so  while 
his  horses  were  eating,  he  proceeded  to  carry  it  to  the  laundry,  in 
order  that  it  would  be  there  on  time.  He  sued  the  defendants  in  a 
common-law  action,  and  they  pleaded  that  all  the  parties  were 
under  the  compensation  act  and  that  the  suit  should  come  under 
the  compensation  act.  The  court  so  held  and  retained  the  case  for 
determination  according  to  the  compensation  act.  "The  Court  was 
right  in  holding,  as  a  matter  of  law,  that  the  injury  to  the  plain- 
tiff arose  out  of  his  employment.  It  was  a  street  risk  to  which  the 
work  subjected  him.  This  should  be  understood  to  be  settled  law 
in  this  state  as  it  is  generally  in  other  states.  Mahowald  v.  Thomp- 
son-Starrett  Co.,  134  Minn.  113,  158  N.  W.  913,  159  N.  W.  565; 
and  cases  cited ;  Kunze  v.  Detroit,  etc.,  192  Mich.  435 ;  158  N.  W. 
851,  L.  R.  A.  1917A,  252,  Burton  Auto  Transfer  Co.  v.  Ind.  Ace. 
Com'r.  (Cal.  App.)  174  Pac.  72;  Keaney's  case,  232  Mass.  532, 
122  N.  E.  739 ;  Globe  Ins.  Co.  v.  Ind.  Ace.  Co.,  36  Cal.  App.  288, 

7.    Haddock  v.  Edgewater  Steel  Co.,  263  Pa.  120,  106  Atl.  196,  (1919),  18 
N.  C.  C.  A.  1041,  3  W.  C.  L.  J.  786. 
570 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   272 

171  Pac.  1088;  Consumers'  Co.  v.  Ceislik  (Ind.  App.)  121  N.  E. 
882;  Bachman  v.  Waterman  (Ind.  App.)  121  N.  E.  8.  It  is  now  the 
definitely  settled  law  in  England.    Dennis  v.  A.  J.  White  &  Co., 
(1917),  App  Cas.  479;  Arkell  v.  Gudgeon,  118  L.  T.  R.  2-Y-v  The 
injury  arose  in  the  course  of  the  employment  of  the  plaintiff.   It 
is  true  that  he  \v;is  not  using  his  delivery  wagon  and  that  it  was 
not  customary  to  carry  laundry  as  he  was  doing  at  the  time;  l>ut 
lie  was  working  in  furtherance  of  his  employer's  interest.     The 
laundry  was  received  by  the  laundry  company  after  the  accident 
and   laundered.     lie  did  not  step  aside  from  his  work  for  some 
purpose  of  his  own  but  was  actually  furthering  the  business  <>f 
the  company.    It  had  never  told  him  to  do  or  not  to  do  as  he  did. 
Such  an  occasion  had  not  arisen.    It  is  clear  that  if  an  injury  had 
not  intervened  there  would  have  been  no    thought    of   criticism. 
It  would  be  too  severe  a  rule  that  would  permit  a  finding,  if  the 
proceeding  were  against  the  laundry  company   under    the    Com 
peusation  Act,  that  the  plaintiff  was  not  in  the  course  of  his  em- 
ployment.    The  result  here  should    be  the    same.     The    holding 
that,  as  a  matter  of  law,  the  injury  arose  out  of  the  employment 
was  right.     The  cases  on  principle,  and  some  with  somewhat  re- 
sembling facts,  support  the  rule.  Mahowald  v.  Thompson-Starrett 
Co.,  l:U  Minn.  113,  158  N.  W.  913,  159  N.  W.  565,  State  v.  District 
Court,  141  Minn.  61,  169  N.  W.    274;    State  v.    District    Court, 

172  N.    W.  897;  Grieb    v.    Hammerle,    222  N.  Y.  382,  118    N. 
E.  805;    Mueller  Con.  Co.  v.  Ind.  Board,  283  111.  148,  118  X.  E. 
1028,  L.  R.  A.  1918F,  891,  Ann.  Cas.  1918E,  808;    Kunze  v.  De- 
troit, etc.,  192  Mich.  435,  158  N.  W.  851,  L.  R.  A.  1917A,  252; 
Robinson  v.  State,  (Conn.),  104  Atl.  4!»1  :  Frint  .Motor  Co.  v.  Tud. 
Com.,  168  Wis.  436,  170  N.  W.  285  :    Dennis  v.  A.  .1.  White  &  Co., 
(1917),  A.  C.  479;    Arkell  v.  Gudgeon,  118  L.  T.  R.  258."  8 

An  employee's  duties  necessitated  that  he  write  letters  and 
mail  them  at  a  street  box.  While  crossing  the  street,  after  mail- 
ing a  letter,  on  his  return  to  his  place  of  employment,  he  was 
struck  and  injured  by  an  automobile.  In  affirming  an  award 

8.  Hansen  v.  N.  W.  Fuel  Co.,  144  Minn.  105,  174  N.  W.  726.  6  W.  C.  L.  J. 
284. 

571 


§  272  WORKMEN'S  COMPENSATION  LAW 

for  compensation  the  court  said:  "The  conditions  under  which 
the  work  here  was  required  to  be  performed  took  Roberts  upon 
the  street  in  the  course  of  his  employment  in  exactly  the  same 
manner  as  that  in  which  a  factory  hand  is  subjected  to  the  dan- 
gers of  the  factory  while  in  the  course  of  his  employment.  There 
is  a  direct  causal  connection  here  between  the  fact  that  the  man 
was  on  the  street  and  the  fact  that  he  was  injured.  The  accident 
was  a  natural  accident  of  his  work  resulting  from  the  exposure 
occasioned  by  the  necessity  of  his  going  upon  the  street  while 
performing  such  work.  He  was  not  exposed  to  this  danger  of  the 
street  'apart  from  his  employment.'  The  causative  danger  was 
peculiar  to  the  work,  in  that,  had  he  not  been  on  the  street  in 
the  course  of  his  duty,  he  would  not  have  been  injured.  *  *  * 
The  petitioner  contends  that,  because  Roberts  was  exposed  only 
to  the  ordinary  perils  of  the  street  to  which  any  other  person  is 
exposed,  he  does  not  fall  within  the  rule  which  awards  compen- 
sation for  an  injury  arising  out  of  the  employment  of  the  injured 
man.  When  the  logical  result  of  the  application  of  the  rule  for 
which  petitioner  is  contending  is  considered,  the  justice  of  treat- 
ing this  case  as  one  arising  out  of  Roberts'  employment  is  ap- 
parent. Consider  the  case  of  a  messenger  boy.  He  is  in  no 
greater  peril  on  the  street  than  any  other  person  there.  He  car- 
ries perhaps  his  message  in  his  pocket,  leaving  his  arms  disen- 
gaged and  perfectly  free  to  move  about.  But  he  is  on  the  street 
constantly  in  the  course  of  his  employment.  To  hold  that  Roberts 
is  not  entitled  to  compensation  would  be  to  hold  that  this  mes- 
senger boy  would  likewise  not  be  entitled  to  compensation  for 
an  injury  caused  to  him  by  the  perils  of  the  street.  The  illus- 
tration might  be  extended  further  to  truck  drivers,  teamsters, 
and  numerous  other  classes  of  employment  whose  followers  use 
the  streets  in  the  regular  course  of  their  duty,  and  whose  peril 
on  the  streets  is  no  greater  than  that  of  any  other  person,  but 
who  would  not  be  injured  but  for  the  fact  that  their  duty  takes 
and  keeps  them  on  the  street.  It  does  not  seem  to  us  that  the 
legislature  ever  intended  that  these  persons  should  be  excluded 
from  the  benefit  of  industrial  accident  compensation."9 

9.    Globe  Indemnity  Co.  v.  Indus.  Ace.  Comm.  of  Gal.,  36  Gal.  App.  280, 
572 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §    272 

A  motion  pit-tun1  employee  reported  for  work  and  was  in- 
formed that  he  would  not  be  needed,  but  the  employer's  rules  re- 
quired him  to  remain  at  the  plant  for  possible  service  during  the 
day.  The  plant  occupied  the  four  corners  of  intersecting  streets, 
and  the  thoroughfares  were  constantly  used  by  employees  in 
p.-iNNJnir  j'nun  one  part  of  the  plant  to  another.  On  the*  morning  of 
the  accident  applicant  crossed  the  street  to  change  his  coat  pre- 
paratory to  playing  a  game  of  chess  and  when  returning  he  stop- 
ped in  the  street  and  engaged  in  conversation  with  fellow  em- 
ployees. One  of  the  director's  automobiles  approached  and  struck 
him.  In  reversing  an  award  based  upon  the  theory  that  the  acci- 
dent arose  out  of  the  employment,  the  court  said:  "Even  if  it  were 
conceded  that  injuries  suffered  by  Stanley  would  have  been  com- 
pensable  if  they  had  resulted  from  an  accident  happening  to  him 
while  actually  traversing  the  street  on  the  way  from  changing  his 
co.it,  for  his  own  convenience,  to  a  contest  of  chess,  for  his  own 
pleasure,  we  have  by  no  means  settled  the  matter.  If  we  admit 
that  the  risk  in  crossing  the  street  was  a  risk  incident  to  his  em- 
ployment, upon  the  theory  that,  for  the  purpose  of  crossing  and 
recrossing,  the  street  was  a  part  of  the  company's  lot.  we  are  yet 
afield.  The  thoroughfare  was  certainly  not  a  part  of  the  lot  in 
the  sense  that  Stanley  might  properly  have  loitered,  or  stood  in 
social  converse,  upon  it,  as  he  might  very  properly  have  done  up- 
on any  part  of  the  lot  located  upon  the  corners  of  the  intersec- 
tion. When  he  stopped  in  the  street  he  assumed  a  risk  common 
to  all  who  might  sojourn  there  in  the  same  manner.  Under  such 
circumstances  his  employer  is  not  called  upon  to  make  compensa- 
tion for  his  injuries.  They  did  not  arise  out  of  his  employment."10 

A  foreman  of  a  street  gang  was  struck  and  killed  while  er 
ing  a  street  to'talk  to  a  friend.    In  holding  that  the  accident 
happened  at  a  place  where  deceased  might  reasonably  be.  con- 
sistently with   the   performances  of  his  duties,  the  court   said: 
"Finally.  Robinson's  employment  as  foreman  did  not  require  his 

171  Pac.  1088.  16  N.  C.  C.  A.  907.  2  W.  C.  L.  J.  31;    McDonald  v.  Great 
Atlantic  ft  Pac.  Tea  Co..  —  Conn.  — .  (1920).  ill  Atl.  65. 

10.  Balboa  Amusement  Producing  Co.  v.  Indus.  Ace.  Comm.  of  Cal.,  35 
Cal.  App.  793.  171  Pac.  108,  16  N.  C.  C.  A.  906.  1  W.  C.  L.  J.  747. 

573 


§  272  WORKMEN'S  COMPENSATION  LAW 

•  f 

uninterrupted  attention.  No  doubt  he  was  expected  to  work  on 
the  road  in  the  larger  intervals  of  his  supervisory  employment, 
but  was  necessarily  a  foreman  at  all  times,  and  his  conduct  must 
be  measured  accordingly.  Upon  the  findings  of  the  commissioner 
the  case  turns  on  the  question  whether  one  employed  as  a  fore- 
man of  a  repair  gang  on  a  much-traveled  highway  does-  or  does 
not  step  outside  of  his  employment  as  a  matter  of  law,  because 
he  starts  across  the  road,  in  response  to  a  friendly  salutation,  for 
the  purpose  of  conversation,  when  there  is  no  evidence  as  to  how 
long  he  intended  to  talk,  and  no  evidence  that  his  starting  to 
cross  the  road  did  interfere,  or  that  his  intended  conversation 
would  have  interfered,  with  the  due  performance  of  his  work  as 
foreman.  We  think  this  question  must  be  answered  in  the  nega- 
tive."11 

A  truck  driver,  whose  duties  were  not  limited  to  fixed  hours,, 
was  ordered  ttf  take  a  pipe  to  the  depot.  The  depot  was  closed  so 
he  stopped  at  his  employer's  office,  where  he  usually  stayed  when 
not  actively  engaged,  and  when  returning  to  his  truck  he  was 
struck  by  a  passing  machine.  It  was  held  that  the  accident  arose 
out  of  and  in  the  course  of  the  employment.12 

A  teamster  was  killed  while  passing  a  building  in  construction, 
when  heavy  beams  fell  upon  him  and  crushed  him  to  death.  Plain- 
tiff recovered  a  judgment  at  law  against  defendant,  and  the  court 
held  that  since  both  parties  were  under  the  compensation  act,  the 
lower  court  should  have  reduced  the  verdict  to  the  amount  re- 
coverable under  the  compensation  act.  The  case  was  remanded 
with  instructions  accordingly.13 

The  general  rule,  supported  by  the  weight  of  authority,  is  that 
when  employees  are  injured  on  the  street,  from  causes  to  which 
all  other  persons  using  the  street  are  likewise  exposed,  the  injury 
cannot  be  said  to  arise  out  of  the  employment.  So  where  an  em- 

11.  Robinson  v.  State,  93  Conn.  49,  104  Atl.  491,  17  N.  C.  C.  A.  954,  2 
W.  C.  L.  J.  779. 

12.  Burton  Auto  Transfer  Co.  v.   Indus.  Ace.  Comm.  of  Cal.,  37  Cal. 
App.  657,  174  Pac.  72,  17  N.  C.  C.  A.  955,  2  W.  C.  L.  J.  750. 

13.  Mahowald  v.  Thompson-Starrett  Co.,  134  Minn.  113,  158  N.  W.  913, 
14  N.  C.  C.  A.  904. 

574 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    -~i- 

ployee  whose  business  for  the  company  required  him  to  travel 
on  the  streets  between  the  various  establishments  of  his  employer, 
slipped  on  an  ice  covered  sidewalk  while  running  to  catch  a 
street  car  and  sustained  injuries  from  which  he  died,  the  court, 
in  refusing  to  make  an  award,  said:  "Slipping  upon  snow  cover- 
ed ice  and  falling  while  walking  or  running  is  not  even  what  is 
known  as  peculiarly  a  'street  risk;'  neither  is  it  a  recognized  ex- 
tra hazard  of  travel,  or  particularly  incidental  to  the  employ- 
ment of  those  who  are  called  upon  to  make  journeys  between 
towns  on  business  missions.  *  *  *  This  unfortunate  accident  re- 
sulted from  a  risk  common  to  all,  and  which  arose  from  no  special 
exposure  to  dangers  of  the  road  from  travel  and  traffic  upon  it. 
It  was  not  a  hazard  peculiarly  incidental  to  or  connected  with 
deceased 's  employment,  and  therefore  is  not  shown  to  have  a  caus- 
al connection  with  it,  or  to  have  arisen  out  of  it."14 

Where  a  workman  is  sent  into  the  public  streets  on  his  em- 
ployer's business,  whether  habitually  or  occasionally,  and  he 
meets  with  an  accident  by  reason  of  a  risk  of  the  streets  to  which 
his  employment  exposes  him,  the  accident  arises  out  of  and  in  the 
course  of  his  employment.  Lord  Finley,  speaking  for  the  House 
of  Lords,  gives  the  English  rule  on  this  subject  as  follows:  "If 
i-vant  in  the  course  of  his  master's  business  has  to  pass  along 
the  public  street,  whether  it  be  on  foot  or  on  a  bicycle  or  on  an 
omnibus  or  car,  and  he  sustains  an  accident  by  reason  of  the  risks 
incidental  to  the  streets,  the  accident  arises  out  of  as  well  as  in 
the  course  of  his  employment.  The  frequency  or  infrequency  of 
the  occasions  on  which  the  risk  is  incurred  has  nothing  to  do  with 
the  question  whether  an  accident  resulting  from  that  risk  arose 
out  of  the  employment.  The  use  of  the  streets  by  the  workman 
merely  to  get  to  or  from  his  work  of  course  stands  on  a  differ- 
ent footing  altogether,  but  as  soon  as  it  is  established  that  the 
work  itself  involves  exposure  to  the  perils  of  the  streets  the  work- 
man can  recover  for  any  injury  so  occasioned.  *  *  *  'The  fact 

14.  Hopkins  v.  Michigan  Sugar  Co..  T84  Mich.  87.  150  X.  W.  325,  L.  R. 
A.  1916A.  310;  In  re  Edward  J.  McDonough.  2nd  A.  R.  U.  S.  C.  C.  243: 
In  re  Nelson  L.  Crapes.  2nd  A.  R.  U.  S.  C.  C.  286;  Orsinnie  v.  Lorrance 
—  Conn.  —  (1921).  113  Atl.  924. 

575 


§  272  WORKMEN'S  COMPENSATION  LAW 

that^the  risk  may  be  common  to  all  mankind  does  not  disentitle 
a  workman  to  compensation  if  in  the  particular  case  it  arises  out 
of  the  employment."15 

A  traveling  salesman  was  injured  by  falling  upon  an  icy  street 
while  going  in  pursuance  of  his  duties,  from  the  house  of  a  cus- 
tomer to  take  a  car  to  make  another  call.  It  was  held  that  while 
the  accident  arose  in  the  course  of  the  employment,  it  did  not 
arise  out  of  it,  as  the  danger  of  falling  on  the  ice  was  not  inciden- 
tal or  peculiar  to  his  employment,  but  was  a  hazard  common  to 
every  one  using  the  streets.  The  court  said:  "The  finding  that 
the  injury  was  received  in  the  course  of  the  employment  was 
warranted.  The  question  remains  whether  there  was  any  evidence 
that  the  injury  arose  out  of  the  employment.  An  injury  arises 
out  of  the  employment  when  there  is  a  causal  connection  between 
the  conditions  under  which  the  work  is  to  be  performed  and  the 
resulting  injurjr.  An  injury  cannot  be  found  to  have  arisen  out 
of  the  employment  unless  the  employment  was  a  contributing, 
proximate  cause.  If  the  risk  of  injury  to  the  employee  was  one 
to  which  he  would  have  been  equally  exposed  apart  from  his  em- 
ployment, then  the  injury  does  not  arise  out  of  it.  As  was  said 
by  this  court  in  McNicol's  Case,  215  Mass.  497,  at  page  499,  4  N. 
C.  C.  A.  522,  102  N.  E.  697,  L.  K.  A.  1916A  306:  'The  causative 
danger  must  be  peculiar  to  the  work  and  not  common  to  the 
neighborhood.  It  must  be  incidental  to  the  character  of  the 
business  and  not  independent  of  the  relation  of  master  and  serv- 
ant.' "16 

15.  Dennis  v.  White  &  Co.,  (1917),  A.  C.  479,  15  N.  C.  C.  A.   294;     Also 
Redner  v.  H.  C.  Faber  &  Sons,  223  N.  Y.  379,  119  N.  E.  842,  16  N.    C.  C. 
A.  903,  2  W.  C.  L.  J.  538;     Arkell  v.  Gudgeon,  118  L.  T.  R.   258,  (1917),  17 
N.  C.  C.  A.  958. 

16.  Donahue  v.  Maryland  Casualty  Co.,  226  Mass.  595,  116  N.  E.  226%  14 
N.  C.  C.  A.  491,  L.  R.  A.  118A,  215;  In  re  Betts,  64  Ind.  App— ,  118  N.  E. 
551,  16  N.  C.  C.  A.  904;   International  Harvester  Co.  of  N.  J.  v.  Indus. 
Board  of  111.,  282  111.  489,  118  N.  E.  171,  16  N.  C.  C.  A.  912;   Charles  R. 
Davidson  &  Co.  v.  M'Robb  or  Officer  (1918),  A.  C.  304,  16  N.  C.  C.  A.  912; 
Spencer  v.  "Liberty"  (owners)  (1917),  W.  C.  &  Ins.  Rep.  293,  16  N.  C.  C.  A. 
918;  In  re  OToole,  229  Mass.  165,  118  N.  E.  303,  16  N.  C.  C.  A.  916;  Sym- 
monds  v.  King,  (1905),  W.  C.  &  Ins.  Rep.  282,  15  N.  C.  C.  A.  254;  State  ex 
rel.  Miller  v.  District  Court  of  Hennipin  County,  138  Minn.  326,  164  N.  W. 

576 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    272 

Claimant  was  a  traveling  salesman.  His  employer  was  engaged 
in  the  manufacture  of  leather  in  New  York  City.  The  claimant 
occasionally  visited  the  factory  to  procure  samples.  He  was  in- 
jured while  riding  in  a  public  bus  from  White  Plains  to  Port. 
Chester,  and  was,  at  the  time  of  the  accident,  engaged  in  his  reg- 
ular occupation  of  going  from  place  to  place  for  the  purpose  of 
selling  goods.  "Under  group  32  of  section  2  of  the  workmen's 
compensation  law,  the  employer  was  engaged  in  a  hazardous  em- 
ployment; but  the  claimant  was  not  so  engaged.  The  hazards 
incident  to  manufacturing  leather  goods  in  no  manner  menaced 
this  claimant,  riding  along  on  the  highway  in  a  bus  with  other 
passengers.  In  fact,  the  vicissitudes  of  the  claimant,  as  he  jour- 
neyed from  town  to  town,  were  not  in  the  remotest  degree  af- 
fected by  the  character  of  the  business  carried  on  by  his  em- 
ployer. His  perils  were  not  increased;  his  safety  not  diminished. 
It  is  not  sufficient  under  the  statute  for  the  employer  to  be  en- 
gaged in  a  hazardous  employment ;  the  claimants  must  have  been 
so  engaged."17 

Deceased  was  a  salesman  for  a  lumber  company,  and  while 
riding  a  motorcycle  furnished  by  his  employer,  was  struck  by  a 
train  and  killed.  In  affirming  an  award  the  court  said:  "Of 
course,  the  employer  in  this  case  was  not  in  the  business  of  operat- 
ing a  motorcycle  for  gain.  Its  business  was  not  the  operation  of 
motorcycles  in  any  sense.  I  think,  however,  that  'pecuniary 
gain.'  as  used  in  the  statute,  merely  means  that  the  employer 
must  be  carrying  on  a  trade,  business,  or  occupation  for  gain  in 
order  to  come  within  the  act.  If,  in  that  connection,  the  purp«>x,« 
of  using  the  motorcycle  is  profit,  that  is  enough."18 

1012.  15  N.  C.  C.  A.  256;  DeVoe  v.  N.  Y.  St.  Rys.,  218  N.  Y.  318.  L.  R.  A. 
1917A.  250  113  N.  E.  256.  15  N.  C.  C.  A.  255:  Draper  v.  Regents  of  Uni- 
versity of  Mich..  195  Mich.  449.  161  N.  W.  956,  14  N.  ('.  C.  A.  934; 
Schroeder  &  Daley  Co.  v.  Indus.  Comm.  of  Wis.,  —  WIs.  — ,  173  N.  W. 
328.  4  W.  C.  L.  J.  576. 

17.  Mandle  v.  Steinhardt  &  Bro.,  173  App.  Div.  515.  160  N.  Y.  Supp 
2,  14  N.  C.  C.  A    491;     Benton  v.  Frazer.  219  X.  Y.  210.  114  N.  E.  43,  14 
N.C.C.A.492;    Sickles  v.    Ballston     Refrigerating   Storage  Co.    171  N. 
Y.  App.  108.  156  N.  Y.  Supp.  864.  14  N.  C.  C.  A.  493. 

18.  Mulford  v.  Pettit  &  Sons.  220  N.   Y.  540.   116  N.  E.  344.    14  N.  C. 

577 

W.  C.— 37 


§  272  WORKMEN'S  COMPENSATION  LAW 

A  solicitor  and  collector  for  a  life  insurance  company  was  fa- 
tally injured  by  a  street  car,  when  running  across  the  street  to 
take  a  car  while  in  route  to  solicit  business  at  the  directions  of 
the  employer.  In  holding  that  the  injury  arose  out  of  the  em- 
ployment the  court  said:  "In  the  case  at  bar,  the  workman  to  do 
the  work  of  his  employment  must  continually  stand  in  danger  of 
receiving  an  injury  from  accidents  resulting  from  exposure  to 
whatever  risks  and  hazards  are  commonly  attendant  on  the  use 
of  public  streets  and  conveyances ;  which  risks  to  him  are  greater 
because  more  constant  than  those  that  are  incidental  to  the  occa- 
sional and  casual  use  of  such  streets  by  persons  who  use  them  in 
the  ordinary  way. ' ' 20 

Where  an  employee  of  a  commission  merchant,  while  crossing 
a  street,  during  working  hours  in  his  working  clothes,  to  get  re- 
freshments, in  pursuance  to  a  custom  of  the  employees,  was  in- 
jured, while  talking  to  a  prospective  customer,  it  was  held  the 
accident  arose  out  of  and  in  the  course  of  his  employment.21 

C.  A.  492;  Mueller  Construction  Company  v.  Indus  Bd.  'of  111.,  283  111. 
148,  118  N.  F.  1028,  16  N.  C.  C.  A.  902;  Scully  v.  Industrial  Comm.,  284 
111.  567,  120  N.  E.  492;  Keaney's  Case,  232  Mass.  532,  122  N.  E.  739,  4 
W.  C.  L.  J.  103;  Malone  v.  Detroit  United  Ry.  Co.,  202  Mich.  136,  167 
N.  W.  96,  2  W.  C.  L.  J.  293;  Coster  v.  Thompson  Hotel  Co.,  102  Neb.  585, 
168  N.  W.  191,  16  N.  C.  C.  A.  905;  Kunze  v.  Detroit  Shade  Tree  Co.,  192 
Mich.,  435,  158  N.  W.  851,  15  N.  C.  C.  A.  253;  London  &  L.  Indem.  Co.  v. 
Indus.  Ace.  Comm.,  35  Cal.  App.  681,  170  Pac.  1074,  16  N.  C.  C.  A.  909; 
Beaudry  v.  Watkins,  191  Mich.  445,  158  N.  W.  16,  15  N.  C.  C.  A.  254; 
In  re  Raynes,  64  Ind.  App.—,  118  N.  E.  387, 16  N.  C.  C.  .-'..  909;  Putnam  v. 
Murray,  174  App.  Div.  720,  160  N.  Y.  S.  811,  15  N.  C.  C.  A.  256;  Indus. 
Comm.  of  Colo.  v.  Aetna  Life  Insurance  Co.,  64  Colo.  480,  174  Pac.  589  17 
N.  C.  C.  A.  955;  Bachman  v.  Waterman,  —  Ind.  App.  — ,  121  N.  E.  8  17 
N.  C.  C.  A.  956;  McMinn  v.  Kern  Brewing  Co.,  202  Mich.  414,  168  N.  W. 
542,  17  N.  C.  C.  A.  957;  State  ex  rel.  London  &  Lancashire  Indem.  Co. 
of  America  v.  District  Ct.  of  Hennipin  County^  141  Minn.  348,  170  N.  W. 
218,  (1919),  17  N.  C.  C.  A.  958. 

20.  Morans   Case,  --   Mass.   — ,    (1920),   125   N.   E.   591,   5   W.   C.   L. 
J.  400. 

21.  State  industrial  Comm.  v.  Voorhees,  —  App.  Div.  — ,  (1920),  18* 
N.  Y.   S.  888,   7   W.  C.   L.  J.  238. 

578 


ACC1DKM    AKISINU  OUT  OP  COURSE  OP  EMPLOYMENT.        §    273 

NON   WOKKINU  TIME  INJURII .>. 

§  273.  Miscellaneous  Accidents  Before  And  After  Work  Hours. 
Whore  a  millwright,  on  leaving  his  employer'*  ]>l;mt  long  after 
customary  work  hours,  discovered  a  fire  in  the  plant,  and  re- 
turned to  the  building  to  put  it  out,  and  lost  his  life  in  the  fire, 
this  evidence  was  held  to  support  a  finding  that  the  accident  arose 
out  of  and  in  the  course  of  the  employment.  "He  must  have  en- 
tered the  building  voluntarily,  and  knowing  the  possibility  of 
danger  in  so  doing  from  its  being  then  on  fire.  But  it  is  a  reason- 
able inference  that  he  did  so  for  either  one  or  both  of  these  purposes : 
(1)  1'ndtT  the  specific  duty  devolving  upon  him  to  have  charge 
of  and  look  after  the  valuable  patterns  essential  for  the  work  being 
done  by  his  employer;  (2)  from  the  sense  of  obligation  to  use  a 
reasonable  amount  of  care  to  save  his  employer's  property  at  a 
time  of  such  emergency.  As  to  each  of  these  it  needed  no  specific 
instructions  from  any  superior  to  perform  such  services  or  volun- 
tarily assume  such  responsibility  while  making  an  effort  within 
the  field  of  reasonable  care  to  save  the  property  of  hia  employer. 
While  so  doing  he  cannot  be  considered,  as  a  matter  of  law,  to  be 
a  straii-.T.  M.-Phee's  Case,  2^2  Mass.  1,  4,  109  N.  E.  633;  Munw 
\  hid.  Brd.,  274  111.  70,  113  N.  E.  110.  We  do  not  think  that 
either  the  letter  or  the  spirit  of  the  Workmen's  Compensation  Act 
requires  that  such  employee  should  be  penalized  for  obeying  such 
a  natural  and  commendable  instinct  on  his  part."' 

A  workman  furnished  his  services  and  his  team  to  the  city  of 
Minneapolis  for  stated  daily  compensation.  He  fed  and  stabled 
his  team  at  his  own  expense.  His  work  ceased  at  5  iu  the  evening 
One  evening  after  work  he  was  caring  for  his  horse  in  his  stable 
when  the  horse  kicked  and  killed  him.  The  court  said:  "The  facts 
stated  give  no  right  to  compensation.  The  plaintiff's  work  for  the 
day  was  done.  He  was  not  to  do  service  for  the  city  until  the  next 
morning.  The  horses  were  his  and  he  fed  and  cared  for  them  and 
furnished  them  and  his  wagon  ready  for  work  at  a  definite  time. 
The  accident  did  not  arise  out  of  his  employment  any  more  than 

22.  Bell  City  Malleable  Iron  Co.  et  al.  v.  Rowland.  170  Wls.  293.  174 
N.  W.  899,  5  W.  C.  L.  J.  333. 

579 


§  273  WORKMEN'S  COMPENSATION  LAW 

would  an  accident  which  came  while  he  was  repairing  his  wagon  or 
while  doing  other  work  in  preparation  for  his  next  day's  work 
for  the  city.  The  relator  cites  where  a  teamster,  injured  while 
caring  for  his  horses  after  their  work  for  the  day  was  done,  was 
allowed  compensation.  Smith  v.  Price,  168  App.  Div.  421,  153 
N.  Y.  Supp.  221 ;  Costello  v.  Taylor,  217  N.  Y.  179,  111  N.  E.  755 ; 
Suburban  Ice  Co.  v.  Industrial  Board,  274  111.  630,  113  N.  E.  979. 
They  involve  situations  where  a  teamster  was  doing  work  for  his 
employer  in  the  care  of  his  employer's  team  and  as  a  part  of 
the  work  for  his  employer."23 

An  employee  on  a  tug  boat  was  discharged  for  being  intoxicated, 
instead  of  leaving  the  premises  immediately,  he  remained  therein 
for  some  time  afterwards.  His  body  was  found  later  in  the  river 
in  the  vicinity  of  the  pier.  The  court  said:  "If  it  be  considered 
that,  after  the  discharge  of  the  deceased  his  employment  continued 
a  reasonable  length  of  time  to  enable  him  to  remove  his  belongings 
from  the  boat,  it  must  nevertheless  have  ceased  immediately  upon 
his  leaving  it.  It  cannot  be  inferred  that  he  fell  into  the  water 
while  in  the  act  of  leaving  the  boat,  or  prior  thereto,  rather  than 
after  leaving  it  he  fell  from  the  dock,  -while  proceeding  along  its 
edge  in  an  intoxicated  condition.  Indeed,  it  would  seem  that,  if 
he  fell  while  in  the  act  of  leaving,  the  engineer  who  saw  him  start 
for  shore  would  have  heard  a  splash  of  water  when  he  struck  it, 
or  heard  him  cry  for  help.  Only  a  mere  guess  leads  to  the  con- 
clusion that  the  deceased  fell  into  the  water  prior  to  attaining  a 
secure  foothold  upon  the  pier.  There  was  no  proof,  therefore,  that 
the  deceased  came  to  his  death  through  an  accident  arising  in 
the  course  of  his  employment."24 

Where  a  railroad  engineer  was  injured  by  falling  from  his 
engine,  while  assisting  in  "spotting  furnaces,"  the  lower  court 
found  that  the  employee  had  been  laid  off  for  being  intoxicated 
about  an  hour  previous  to  the  accident.  This  decision  was  reversed 
on  appeal  upon  a  finding  against  the  employer  on  the  question  of 

23.  State  ex  rel.  Jacobson  v.  District  Court  of  Hennipen  County,  144 
Minn.  259,  175   N.  W.  110,  5   W.  C.  L.  J.   288  (1919);    In  re  Frank  Fair, 
2nd    A.  R.   U.  S.  C.  C.  269. 

24.  In  re  Whalen,  186  App.  Div.  190,  173  N.  Y.  S.  856,  (1919),  18  N.  C. 
C.  A.  1037. 

580 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    273 

suspension,  ;ind  il  was  held  that  therefore  the  accident  arose  out 
of  and  in  the  course  of  the  employment.-"' 

An  electrician  received  injuries  due  to  the  explosion  of  a  dynamite 
cap  when  he  lit  a  cigarette  while  preparing  to  begin  work.  Smok- 
ing was  not  prohibited  about  the  premises.  In  reversing  a  de- 
cision of  the  lower  court  denying  compensation  the  Supreme  court 
held  that  the  burden  of  showing  that  the  injury  arose  both  out  of 
and  in  the  course  of  the  employment  rested  upon  the  claimant; 
that  since  the  claimant  was  at  the  time  in  the  shop  preparing  to 
start  work,  the  injury  occurred  in  the  course  of  the  employment; 
that  a  "causal  connection  between  the  employment  and  the  injury 
*  *  *  is  shown  by  the  u^  of  dynamite  caps  upon  the  premises,  and 
th«-  presence  thereof  in  the  room  where  the  plaintiff  was  regularly 
employed."26 

The  plaintiffs,  in  two  common  law  actions,  were  employees  of 
the  Northern  States  Power  Company.  The  crew  went  from  one 
place  to  another,  in  the  performance  of  their  duties  in  a  truck 
furnished  for  that  purpose  by  the  employer.  The  employer  did 
not  undertake  to  convey  his  employees  to  and  from  work,  but 
["•nnitted  any  who  chose  to  ride  to  go  on  the  truck  as  far  as  it 
would  go  in  their  direction.  On  the  evening  of  the  accident  the 
gang  worked  until  10  p.  in.,  and  several  of  the  employees  availed 
themselves  of  the  opportunity  of  riding  home  on  the  truck.  While 
en  route  the  car  collided  with  a  street  car.  resulting  in  injuries  to 
the  two  plaintiffs.  The  question  in  both  cases  was  whether  the  in- 
jury was  one  which  would  come  under  the  provisions  of  the  Work- 
man's Compensation  Act  or  could  the  actions  at  law  he  maintained. 
The  court  decided,  although  they  were  riding  on  the  truck  of  their 
employer,  it  clearly  appears  that  their  contract  of  employment 
imposed  no  obligation  upon  the  employer  to  transport  them  to  or 
from  the  place  of  work,  and  that  they  were  merely  riding  as 
licensees  to  serve  their  own  convenience.  Their  service  for  the  day 
had  terminated;  they  had  left  the  place  where  such  service  had 

25.  Dainty  v.  Jones  &  Laughlin  Steel  Co.,  263  Pa.  109.  106  Atl.  194, 
(1919),  18  N.  C.  C.  A.  1036. 

2«.  Rish  v.  Portland  Cement  .Co.,  (Iowa),  170  N.  W.  532,  (1919),  18 
N.  C.  C.  A/1032;  Bell's  Case.  Mass.  — .  (1921),  130  N.  E.  67;  Western 
Coal  and  Mining  Co.,  Indus.  Comm.,  —  111.  — ,  (1921),  129  N.  E.  779. 

581 


§  273  WORKMEN'S  COMPENSATION  LAW 

been  performed,  and  were  no  longer  engaged  in  performing  any 
service  for  their  employer.  Under  such  circumstances  they  were 
not  within  the  provisions  of  the  compensation  law  and  the  trial 
court  ruled  correctly.27 

Where  an  employee  was  working  evenings,  assisting  other  em- 
ployees to  install  a  recently  moved  plant  of  their  employer,  and 
pinched  his  finger,  which  later  resulted  in  death,  it  was  held  that 
the  accident  arose  out  of  and  in  the  course  of  the  employment.28 

A  workman,  who  was  feeling  poorly  was  told  to  lay  off  until  he 
would  be  able  to  go  to  work  again.  He  returned  the  next  morn- 
ing and  found  a  slip  in  his  locker  to  be  used  in  his  day's  work. 
He  began  work  in  accordance  with  the  Directions.  Later  in  the 
day  he  was  found  dead.  It  was  held  that,  since  the  relationship 
of  master  and  servant  was  only  temporarily  suspended,  when 
deceased  returned  and  began  work  according  to  the  directions  on 
the  slip,  the  relationship  of  master  and  servant  was  again  estab- 
lished, and  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment.20 

"Where  a  fireman  in  an  office  building  died  from  the  effects  of 
inhaling  fumes  while  attempting,  after  work  hours,  to  put  out  a 
fire  in  the  boiler  room,  it  was  held  that  the  accident  arose  out 
of  and  in  the  course  of  the  employment.30 

Several  employees  were  waiting  on  a  pier  until  a  boat  departed 
in  order  that  they  might  begin  work.  During  this  time  a  scaven- 
ger drove  up  to  the  pier  and  began  to  unload  rubbish.  The  men 
walked  over  towards  the  wagon  to  watch  the  man  unload  it.  A 
dynamite  cap,  which  was  among  the  rubbish,  exploded  and  killed 
claimant's  husband.  Neither  the  pier  in  question  nor  the  wooden 
dock  was  controlled  nor  owned  by  the  defendant.  It  was  held  that 

27.  Erickson  v.  St.  Paul  City  Ry.  Co.  and    Omalle}'  v.  Same,  141  Minn. 
166,  169  N.  W.  532,  3  W.   C.  L.  J.   154;   Otto  v.  Duluth  St.  Ry.  Co.,  138 
Minn.  312,  164  N.  W.  1020. 

28.  Perdew  v.  Nufer  Cedar  Co.,  201  Mich  520,  167  N.  W.   868,  2  W.   C. 
L.  J.  313. 

29.  Chicago   Cleaning  Co.  v.  Indus.  Bd.  of  111.,  283  111.  177,   118  N.  E. 
989,  1  W.  C.  L.  J.  940,  16  N.  C.  C.  A.  928. 

30.  Munn  v.  Industrial  Bd.  of  111.,  2?4  111.  70,  113  N.  E.  110,  12  N.  C. 
C.  A.  652. 

582 


ACCIDENT  ARISING  OUT  OP  COUESE  OP  EMPLOYMENT.        §    27-'{ 

there  was  no  causal  connection  between  the  conditions  under 
which  the  worlp  WHS  required  to  be  performed  and  the  resulting 
injury,  and  the  risk  was  not  incident  to  the  employment  but  com- 
mon to  all  persons  in  the  vicinity.81 

Where  a  workman  was  found  dead  in  a  room,  where  he  was 
working  overtime  lifting  hot  damp  cloth  in  a  damp  room,  and 
medical  testimony  was  to  the  effect  that  death  was  due  to  exertion 
of  his  work  in  a  hot  room  and  a  weak  heart,  but  that  with  either 
of  these  factors  absent  he  would  not  have  died.  The  court  held 
that  the  Evidence  warranted  a  finding  that  the  deceased  received 
a  personal  in  jury  arising  out  of  and  in  the  course  of  the  employ - 

Illrllt.32 

It  was  customary  for  porters  in  a  hotel  to  leave  the  place  when 
off  duty  or  be  subject  to  call  when  the  clerk  saw  fit  to  direct 
them  to  perform  some  duty  if  they  remained  around  the  hotel. 
Deceased  was  off  duty  and  was  found  dead  in  an  elevator  used  for 
freight  purposes.  It  was  held  that,  in  the  absence  of  any  positive 
evidence  to  substantiate  a  finding  that  deceased  was  performing 
some  duty  connected  with  his  employment  when  he  met  his  death, 
an  award  could  not  be  allowed  to  stand.33 

Compensation  was  denied  for  the  death  of  an  employee  who 
was  killed  while  on  his  way  to  have  his  watch  tested  after  working 
hours,  in  accordance  with  a  rule  of  the  company  which  required 
that  every  employee  should  have  his  watch  tested  every  two  weeks. 
The  employee  was  not  paid  for  the  time  consumed  in  making  the 
test.  The  court  held  that  deceased  was  not  employed  to  have 
his  watch  tested  and  therefore  was  not  engaged  in  any  duty  con- 
nected with  the  employment  when  injured.  His  risk  was  that  of 
the  commonalty.84 

31.  Buvia   v.    Oscar    Daniels    Co.,    203   Mich.  73,    168    N.   W.    1009,  17 
N.  C.  C.  A.  960. 

32.  In  re  Mooradjian,  229    Mass.  521,  118  N    E.  951,  16    N.  C.    C.  A.. 
920.  1  W.  C.  L.  J.   812. 

33.  Savoy  Hotel  Co.  v.  Indus.  Bd.  of  111.,  279  111.  329,  116  N.  E.  712,  15 
N.  C.  C.   A.   232. 

34.  De  Voe  v.  N.   Y.  State  Rys.,  218  N.  Y.  318,   L.  R.   A.  1917A,  250, 

118  N.  E.  256. 

/ 

583 


§  273  WORKMEN'S  COMPENSATION  LAW 

Where  a  bridge  worker  was  struck  by  lightning,  while  sitting 
in  a  tent  provided  by  the  employer  as  sleeping  quarters  for  his 
employees,  it  was  held. that  the  accident  was  in  the  course  of  the 
employmet,  but  did  not  arise  out  of  the  employment.35 

An  employee's  duties  required  him  to  take  his  employer's  horse 
to  the  country  on  Saturday  for  pasture  over  Sunday,  and  then 
takes  the  horse  back  on  Monday  morning.  While  caring  for  the 
horse  on  Monday  morning  preparatory  to  starting  for  the  city  he 
was  injured.  It  was  held  that  the  injury  was  received  in  the 
course  of  the  employment.36 

Where  a  workman  was  injured  while  working  a  few  minutes 
overtime,  it  was  held  that  he  was  entitled  to  compensation  for  an 
accident  arising  out  of  his  employment.37 

An  employee  was  injured  on  his  way  home  after  putting  up  las 
team.  The  applicant  was  taking  his  books  home  to  make  the  nec- 
essary entries  for  the  day.  There  was  a  place  provided  for  this  at 
the  laundry  where,  he  worked.  It  was  held  that  the  accident  did 
not  arise  out  of  nor  in  the  course  of  the  employment.38 

Where  a  workman  off  duty  went  upon  a  bin,  to  talk  with  a  man 
emptying  gravel,  about  going  home  the  following  Sunday,  and 
when  leaving  voluntarily  and  with  no  emergency  for  immediate 
action,  attempted  to  empty  a  box  of  gravel,  and  in  so  doing  fell 
overboard  and  was  drowned,  the  accident  was  deemed  not  to  have 
arisen  within  the  course  of  his  employment.39 

A  traveling  salesman,  asphyxiated  in  a  hotel  through  the  neg- 
ligence of  the  hotel  management,  did  not  die  from  accidental  in- 
juries arising  out  of  the  employment,  the  accident  had  no  relation 
to  the  employment.  The  decedent  was  not  doing  anything  for  Ihe 
employer  at  the  time.40 

35.  Griffith  v.  Cole  Bros,  et  al.,  183  la.  415,  165  N.  W.  577,  1  W.  C.  L. 
J.  368. 

36.  In  re  Chase,  Ohio  St.  Liab.  Bd.  of  Awards,  (1913),  7  N.  C.  C.  A.  414. 

37.  Gordon  v.   Eby,    1   Cal.  I.  A.  C.  D,    (1914),  13,   4  N.  C.  C.  A.  858, 
7  N.  C.   C.   A.    426. 

38.  Ogilvie  v.  Egan,  1  Cal.  I.  A.  C.  D.,  79,  (1914),  7  N.  C.  C.  A.  426. 

39.  In  re  Claim  of  Simpson,  Op.  Sol.  Dep.  C.  &  L.    (1915),  251. 

40.  Kass  v.  Hirschberg,  Schultz  &  Co.,  151    App.  Dis.  300,  181    N.  Y. 
Supp.    35,  5  W.  C.  L.    J.    879. 

584 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    273 

In  a  Pennsylvania  case  in  which  it  was  held  that  the  employee 
was  not  entitled  to  compensation,  the  court  said: 

"In  the  present  case  the  deceased  was  but  an  ordinary  day  labor- 
er, with  fixed  working  hours,  without  the  limits  of  which  his  em- 
ployer was  not  privileged  to  call  upon  him  for  his  services  with- 
out additional  compensation.  He  had  been  ordered  by  his  foreman 
to  appear  before  the  company's  physician  at  Ronco  for  a  physical 
examination  on  the  evening  of  December  20,  1917.  He  did  not  ap- 
pear at  that  time  and  place,  but  voluntarily  appeared  at  the  home 
of  the  physician  at  Masontown  the  next  evening,  thus  determining 
for  himself  when  and  where  he  would  submit  himself  for  examina- 
tion. He  was  not  being  paid  for  the  time  he  consumed  undergoing 
the  examation  or  in  going  to  and  from  the  place  of  examination. 
He  was  not  injured  while  performing  any  duty  which  he  was  em- 
ployed to  perform,  nor  while  actually  engaged  in  the  furtherance 
of  the  business  or  affairs  of  his  employer."41 

It  was  held  under  section  2  subsection  (d)  of  the  Tennessee  Aet 
that  where  a  laundry  employee  was  injured  while  pressing  a  skirt 
for  the  accommodation  of  a  fellow  employee  after  working  hours 
and  on  a  day  when  individual  laundry  work  was  forbidden,  the  in- 
jury did  not  arise  "out  of  and  in  the  course  of  the  employment."  " 

Where  an  employee  was  injured  while  "deadheading"  into  the 
terminal  after  work  hours,  having  obtained  permission  from  the 
train  dispatcher,  to  ride  the  engine  into  the  terminal  after  woik 
had  ceased,  and  for  which  time  he  was  to  receive  pay,  his  injuries 
arose  out  of  and  in  the  course  of  his  employment.'- 

A  custom  among  the  shot  firers  of  a  mine  required  the  firers 
to  return  in  a  reasonable  time  after  shots  were  fired  to  see 
if  all  had  exploded  before  turning  the  work  over  to  the  next  shift. 
A  miner,  who  after  hours  returned  for  that  purpose,  was  shot  by  a 
mine  guard  who  was  negligent  in  the  performance  of  his  duties. 

41.  Wilson  v.  H.  C.  Prick  Coke  Co.,  —  Pa.  — ,  110  Atl.  723,  6  W.  C.  L. 
J.  602. 

42.  Hinton    Laundry  Co.  v.  De  Lozier.  —  Tenn.  — ,  225  S.    W.  1037. 
(1920).  7  W.  C.  L.  J.  360. 

43.  Payne  v.   Indus.   Oomm.,  —  111.    — .   1921.    129   X.   E.    830. 


586 


§  274  WORKMEN'S  COMPENSATION  LAW 

It  was  held  that  the  employee  was  injured  in  the  course  of  his  em- 
ployment.44 

Where  a  servant  built  a  fire  to  warm  himself  in  the  morning  be- 
fore beginning  work  and  caused  an  explosion,  on  the  surface  above 
the  mine  where  he  was  employed,  which  resulted  in  his  injury,  he 
was  not  entitled  to  the  protection  of  the  act.45 

Where  a  mail  carrier  was  injured  when  going  to  the  post  office 
after  hours  to  pack  his  mail  for  the  following  day's  trip  in  re- 
sponse to  an  order  of  his  superior,  he  was  entitled  to  compen- 
sation.48 

§  274.  During  Temporary  Cessation  of  Work  at  the  Direction 
of  Employer  And  For  Own  Purposes. — A  boy  returning  from  the 
toilet  crossed  over  a  crane  track  to  ask  another  employee  the 
time.  While  crossing  the  track  a  bale  of  cotton,  which  was  being 
rolled  from  a  cart  for  the  purpose  of  being  loaded  on  a  truck, 
fell  and  struck  him  as  he  was  standing  between  the  rails.  The 
county  court  denied  compensation  on  the  ground  that  he  had  de- 
parted from  his  employment  in  crossing  to  the  4-foot  way  which 
lay  beyond  the  way  he  usually  took  in  going  to  the  toilet.  On 
appeal  the  court  held  that  such  departure  was  not  one  that  would 
disentitle  him  to  compensation  for  the  injury  sustained.47 

A  laborer's  duties  were  to  move  the  track,  upon  which  a 
crusher  traveled,  from  the  rear  of  the  crusher  and  place  it  ahead 
of  it.  After  completing  his  work,  and  while  waiting  for  another 
employee  to  run  the  machine  ahead,  he  sat  upon  the  curb  of  the 
street.  In  the  meantime  a  delivery  wagon  drove  up,  and  he 
thought  that  the  wagon  could  drive  between  him  and  the  crusher 
without  striking  him,  but  unfortunately  the  wagon  caught  his 
leg,  injuring  it.  The  court  held  that  the  employee  had  a  right 
to  sit  there,  and  that  the  accident  arose  out  of  and  in  the  course 

44.  Atolia  Mining  Co.  v.  Indus.  Comm.,  —  Cal.  — ,  167  Pac.  148,  A.  I 
W.  C.  L.  J.  114. 

45.  New    Cornelia    Copper   Co.  v.  Espinoza,  —   (1920),    (Ariz.),   (Cir. 
Ct.  of  App.),  268  Fed.  742. 

46.  In  re  Elmer  H.  Watson,  2nd  A.  R.   U.  S.  C.  C.  252;    In  re  Chas. 
D.  McClendon,  2nd  A.  R.  17."  S.  C.  C.  253, 

47.  Corlett  v.  Lancashire  &  Y.  Ry.  Co.,  120  L.  T.  R.  236,  18  N.  C.  C. 
A.  1043. 

586 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   274 

of  the  employment.  In  allowing  compensation  the  court  quoted 
the  following  from  the  case  of  Tarper  v.  Weston-Mott  Co.,  200 
Mich.  275,  166  N.  W.  857;  "The  causative  danger  must  be  pe- 
culiar to  the  work,  and  not  common  to  the  neighborhood.  It 
must  be  incidental  to  the  character  of  the  business,  and  not  inde- 
pendent of  the  relation  of  master  and  servant.  It  need  not  have 
been  foreseen  or  expected,  but  after  the  event  it  must  appear  to 
have  had  its  origin  in  a  risk  connected  with  the  employment,  and 
to  have  flowed  from  that  source  as  a  rational  consequence."48 

An  employee  whose  duties  required  his  presence  within  a 
building,  wandered  out  onto  a  switch  track  for  purposes  of  his 
own,  which  were  in  no  way  connected  with  his  employment. 
While  there  he  sustained  an  injury,  when  a  car  was  struck  by 
another  car,  which  other  employees  were  spotting,  thereby  catch- 
ing decedent  under  its  wheels.  It  was  held  that  the  evidence 
failed  to  show  that  the  accident  arose  out  of  and  in  the  course 
of  his  employment.48 

Compensation  was  denied  where  a  railroad  section  hand  was 
killed  by  a  stroke  of  lightning  while  in  a  barn,  in  which  he  had 
taken  refuge  from  a  storm  at  the  direction  of  his  foreman.  It 
was  held  that  being  struck  by  lightning  does  not  arise  out  of  the 
employment.60 

An  employee's  duties  included  answering  telephone  calls,  and 
when  going  to  answer  a  call,  which  happened  to  concern  his  own 
personal  business,  he  fell  down  stairs  and  sustained  injuries.  In 
allowing  compensation  the  court  said:  "The  evidence  would 
warrant  the  conclusion  that  it  was  the  duty  of  Cox  to  answer 
telephone  calls  even  outside  the  usual  business  hours.  If  this 
was  his  duty,  then  the  circumstances  that  the  call  happened  to  be 
one  which  interested  him  personally  would  not  prevent  his  con- 

48.  Malone  v.  Detroit  United  Ry.  Co.,  202  Mich.   136.   167  N.  W.   99«, 
2  W.  C.  L.  J.  293. 

49.  Piske  v.  Brooklyn  Cooperage  Co.,  143  La.  455,  78  So.  734,  2  W.  C. 
L.  J.  264;     Weiss  Paper  Mill  Co.  v.    Indus.  Comm.,  —  III.    — ,    (1920), 
127  N.  E.  732.  8  W.  C.  L.  J.  307;  Reeves  v.  J.  A.  Dady  Corp.,  —  Conn. 
— .  113  Atl.  162  (1921). 

60.  Klawlnskl  v.  Railway,  185  Mich.  643.  152  N.  W.  213.  L.  R.  A.  1916A, 
342. 

587 


§  274  WORKMEN'S  COMPENSATION  LAW 

duct  in  attending  to  the  call  from  being  service  arising  out  of 
and  in  the  course  of  his  employment."51 

A  workman  during  working  hours  went  upon  his  employer's 
roof  to  get  cool.  This  was  in  violation  of  a  rule  of  the  employer, 
though  the  rule  had  become  a  dead  letter  through  nonenforce- 
ment.  The  next  day  his  body  was  found  beside  the  building, 
where  it  would  be  if  he  had  fallen  from  a  portion  of  the  roof  not 
protected  by  a  railing,  which  place  was  twenty  three  feet  from 
a  door  giving  access  to  the  roof  from  the  room  in  which  the  work- 
man was  employed.  In  holding  that  the  accident  arose  out  of 
the  employment  the  court  said:  "The  accident  happened  upon 
the  premises  of  the  employer  and  we  think,  in  view  of  the  prac- 
tice which  might  have  been  found  to  exist  under  which  the  men 
went  upon  the  roof  for  fresh  air,  that  the  act  of  the  deceased  in 
going  there  on  a  warm  night  was  not  necessarily  outside  his  em- 
ployment, but  could  have  been  found  to  be  incidental  thereto.  An 
injury  to  a  workman  may  arise  out  of  and  in  the  course  of  his 
employment  even  if  he  is  not  actually  working  at  the  time."52 

Where  an  employee  left  his  immediate  place  o'  employment 
and  crossed  over  to  bid  a  fellow  employee  good  bye,  when  the  lat- 
ter was  leaving  for  the  army,  and  while  leaning  on  an  unguarded 
cogwheel  he  caught  his  fingers  and  was  injured,  it  was  held  that 
the  accident  did  not  arise  out  of  the  employment,  for  at  the  time 
of  the  accident  the  injured  employee  was  not  engaged  in  per- 
forming a  duty  connected  with  his  employment.53 

A  girl  stopped  work  just  before  noon  and  went  in  search  of 
the  boss  to  inform  him  that  she  did  not  feel  well  and  would  not 
return  in  the  afternoon.  Not  finding  him  she  proceeded  to  comb 
her  hair  to  remove  particles  of  wool  that  usually  collected  there- 
on. While  doing  so  her  hair  became  entangled  in  a  pulley  and 
her  scalp  almost  torn  from  her  head.  It  was  a  usual  custom 
among  the  employees  to  remove  these  particles  from  their  hair 

51.  In  re   Qox,    (Mass.),  220.  114  N.  E.    281,   15    N.  C.  C.  A.    271;     St. 
Louis  Sugar  Co.  v.  Shraluka,  64  Ind.  App.  — ,  116  N.  E.   330,   15   N.  C.  C. 
A.  271. 

52.  In  re  Von  Ette,  223  Mass.  56,  111  N.  E.   696,  L.  R.  A.   1916D,  641. 

53.  Di  Salvio  v.  Menihan  Co.  et  al.,  225  N.  Y.  123,  121  N.  E.  766. 
588 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.         §    274 

going  home.     It  was  held  that  the  accident  arose  out  of 
and  in  course  of  the  employment.54 

The  mere  fact  that  the  employee  was  resting  for  a  moment  whea 
tin-  accident  happened  is  not  sufficient  to  establish  a  termination 
of  the  relationship  of  employer  and  employee,  so  as  to  deprive 
the  injured  employee  of  compensation  for  disabilr 

But  where  injury  resulted  from  playing  ball  during  the  rest 
period,  compensation  was  denied  under  the  Federal  Act.8* 

A  fnivniaii  kept  his  horse  at  the  place  of  employment  and  used 
him  in  his  employer's  business  at  odd  times,  but  he  was  not  requir- 
ed to,  nor  did  he  receive  pay  for  it.  Upon  one  occasion  he  forgot 
to  bring  the  horse  across  a  certain  creek  during  working  hours 
and  an  employee  volunteered  to  go  and  get  the  horse  and  some 
liquor  for  his  foreman  after  work,  and  was  accidently  drowned. 
It  was  held  that  the  employee  did  not  meet  with  an  accident  ah 
ing  out  of  nor  in  the  course  of  his  employment.'7 

An  employee  was  required  to  perform  duties  any  employee  had 
for  him  to  do,  and  one  of  the  employees  directed  him  to  make  a 
toy  boat  for  him.  While  performing  this  task,  with  the  knowledge 
of  the  employer,  he  cut  oft  one  of  his  fingers.  It  was  a  rule  of  tl«- 
company  that  if  any  special  work  was  to  be  performed  a  special 
requisition,  signed  by  the  master  mechanic,  was  to  be  procured. 
In  this  instance  no  such  requisition  was  obtained.  It  was  held 
that  the  employee  was  not  engaged  in  performing  any  of  the  duties 
connected  with  his  employment  at  the  time  of  the  accident.  Com- 
pensation was  denied.68 

"The  rule  as  gathered  from  the  decisions  of  the  courts  seems  t) 
be  that  where  an  employee  is  injured  when  not  actually  at  work, 

54.  Terlecki  v.  Strauss  &   Co.,  86  N.   J.  L.   708.   92  All.  1087,^85   N.  J. 
L.  454,  89  All.  1023.  4  N.   C.  C.  A.  584. 

55.  Northwestern  Iron  Co.  v.  Indus.  Comm.,  160  Wis.  633,   152   N.  \V. 
416. 

56.  In  re  Elizabeth  Trevena,  2nd  A.  R.  U.  S.  C.  O.  247. 

57.  Wood  v.  Chlco.  Const.  Co..  1  Cal.  I.  A.  C.  D.,  (1914).  7  N.  C.  C.  A. 
434. 

58.  Bowers  v.  Detroit  United   Ry    Mich.  I.  A.  Bd..  1  Nat    romp.  Jour.. 
(1914).  22,  7  N.  C.  C.  A.  433;    Cavero  v.  Hipolito  Screen  Co.,  1  Cal.  I.  A. 
C.  D.,   (1914).  9.  7  N.  C.  Ci  A.  434. 

589 


§  -274  WORKMEN'S  COMPENSATION  LAW 

and  when  in  a  place  where  he  has  no  right  to  be,  or  leaves  his  em- 
ployment temporarily  for  some  private  purpose,  and  not  his  em- 
ployer 's  business,  he  is  not  within  the  line  of  his  duty  at  such  time. 
But  the  rule  is  different  where  there  is  merely  a  temporary  cessa- 
tion of  the  work,  or  where  the  injury  is  received  while  on  the  em- 
ployer's premises  before  commencing  or  after  quitting  work,  or 
at  the  noon  hour. ' ' 69 

Where  an  employee  engaged  in  driving  a  dray  wagon,  stoppe.i 
for  two  minutes  and  crossed  the  street  to  get  a  glass  of  ale,  and 
when  returning  he  was  run  over  and  killed,  it  was  held  that  lie 
was  entitled  to  procure  reasonable  liquid  refreshment,  and  that 
the  accident  arose  out  of  and  in  the  course  of  the  employment.60 

Work  was  temporarily  suspended  at  the  directions  of  the  employ- 
er, and  the  applicant,  together  with  other  employees,  took  seats  on 
the  railroad  track  near  the  car  on  which  they  were  working.  While 
sitting  there  the  cars  were  moved,  and  in  an  effort  to  arise  the  ap- 
plicant was  injured.  It  was  held  that  he  was  still  in  the  employ- 
ment and  compensation  Was  awarded.61 

"We  are  inclined  to  give  the  phrase  'in  the  course  of  employ- 
ment' a  somewhat  liberal  construction,  and  believe  that  an  em- 
ployee ordinarily  should  be  considered  as  being  in  the  course  of 
his  employment  from  the  time  he  reaches  his  employer's  premises 
until  the  time  he  leaves  them,  and  so  if  injured  at  any  time  be- 
tween the  time  of  entering  the  employer's  premises  and  departing 
therefrom  he  would  be  entitled  to  compensation,  even  though  not 
actually  engaged  in  work  at  the  time  of  receiving  the  injury.  But 
where  during  the  hours  of  employment  the  employee  temporarily 
quits  the  employer's  premises  for  some  purpose  of  his  own  and  is 
injured,  or  where  after  the  hours  of  labor  and  before  leaving  the 
employer's  premises  he  goes  to  some  other  portion  of  the  employ- 
er's premises  for  some  private  purpose  of  his  own  and  is  injured, 

59.  In  re  Phillips  Ohio  St.  Liab.  Bd.  of  Awards,  (1913),  7  N.  C.  C.  A. 
433. 

60.  Martin  v.  John  Lovibond  &  Sons,  Ltd.,  (1914),  W.  C.  &  Ins.  Rep. 
78,  5  N.  C.  C.  A.  985. 

61.  Robinson  v.  Kahl  Const.  Co.,  111.  I.  Bd.,  (1914),  7  N.  C.  C.  A.  428. 

590 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   275 

it  cannot  be  said  that  In-  is  injured  in  the  course  of  his  employ- 
ment. "''•- 

An  employer  was  cntra^'d  in  piling  billets,  juid  between  each 
time  he  was  required  to  erect  a  pile,  there  was  a  lapse  of  some  15 
minutes  during  which  he  had  nothing  to  do.  During  this  time  ho 
went  over  to  another  portion  of  the  premises,  and  engaged  in  a 
conversation  with  .-mother  employee  on  matters  personal  to  himself, 
and  while  so  doing  fell  and  was  killed.  It  was  held  that  deceased 
had  departed  from  his  employment  and  that  the  accident  did  n;-t 
arise  out  of  the  employment.03 

An  employee,  who  was  injured  when  returning  from  a  liberty 
loan  meeting  where  he  had  gone  at  the  direction  of  his  superior 
was  entitled  to  compensation  under  the  Federal  Act.0* 

§  275.  Going  to  Report  to  Employer. — Compensation  was  de- 
nied for  the  death  of  an.  employee  who  was  killed  when  he  ?ii 
tempted  to  board  a  moving  train  in  going  to  report  to  his  employ- 
er. In  holding  that  the  accident  did  not  arise  out  of  the  employ- 
ment, the  court  said  that,  "In  attempting  to  board  a  moving  ear 
the  employee  added  peril  to  the  usual  hazard  of  the  employ- 
ment. "ea 

An  employee  in  a  cafe  was  required  to  go  to  defendant's  shop 
in  the  evening  after  her  work  to  report  to  her  employer  and  to  re- 
turn the  key.  She  was  injured  while  crossing  a  railroad  on  her  way 
to  report.  She  might  have  taken  a  longer  route  and  avoided  tho 
raiload.  It  was  held  that  the  accident  arose  in  the  employment 
but  did  not  arise  out  of  it.8* 

Where  a  painter  who  was  required  to  report  to  his  employer's  of- 
fice at  the  end  of  the  day 's  work,  jumped  upon  a  passing  truck,  and 
through  the  jolting  of  the  truck  was  precipitated  to  the  ground 

62.  In  re  Mitchell,  Ohio  St.  Llab.  Bd.  of  Awards,  (1913),  7  N.  C.  C.  A. 
410. 

63.  Swing  v.  Kokomo  Steel  &  Wire  Co.,  —  Ind.  App.  — .  (1919),    12» 
N.  E.  471.  6  W.  C.  L.  J.  380. 

64.  In  re  John  J.  Simons,  2nd  A.  R.  U.  S.  C.  C.  257. 

65.  Jibb  v.  Chadwick,  (1916),  W.  C.  ft  Ins.  Rep.  342,  15  N.  C.  C.  A.  248. 

66.  Hadwin  v.  Shepherd,  (1915),  W.  C.  ft  Ins.  Rep.  503,  15  N.  C.  C.  A. 
245. 

591 


§  276  WORKMEN'S  COMPENSATION  LAW 

and  injured,  it  was  held  that  the  injury  did  not  occur  as  the  re- 
sult of  an  accident  which  arose  out  of  a  natural  risk  of  the  employ- 
ment. The  claim  was  denied.  The  commission  said :  ' '  Had 
this  claimant  taken  a  street  car  and  received  an  injury  in  conse- 
quence or  suffered  an  injury  while  crossing  the  street  or  passing 
along  the  sidewalk,  an  entirely  different  question,  and  one  very 
likely  resulting  in  a  different  decision,  would  have  been  present- 
ed."67 

Where  it  was  the  duty  of  an  employee  to  go  to  places  aw'ay 
from  the  employer's  office  and  return  to  the  office  to  report,  it 
was  held  that  she'  was  all  this  time  acting  within  the  course  of  her 
employment,  and  accordingly  when  she  was  injured  while  alighting 
from  a  street  car,  after  returning  from  he*  errands  elsewhere,  she 
was  entitled  to  compensation.68 

A  conductor  was  killed  by  a  landslide,  while  he  was  enroute  to 
report  the  arrival  of  his  train,  at  the  point  where  the  track  was 
blocked  by  a  previous  landslide.  This  was  the  usual  custom  of 
conductors.  It  was  held  that  deceased  was  acting  in  the  course 
of  his  employment.69 

An  employee  arrived  at  work  late  in  the  morning  and,  believing 
that  he  would  not  be  allowed  to  enter  the  mine  after  7  a.  m.,  start- 
ed to  his  employer's  office  to  report,  and  while  on  the  way  another 
of  defendant's  employees  threw  a  bone  from  a  car  and  struck 
plaintiff,  fracturing  his  skull.  In  affirming  a  judgment  the  court 
held  that  the  plaintiff  was  not  at  the  time  of  his  injury  an  employee 
of  defendant  within  the  meaning  of  the  compensation  act,  and  was 
entitled  to  his  action  at  law.70 

§  276.  Lunch  Hour  Injuries,  on  the  Premises  and  Going  to 
Places  off  Premises  for  Luncheon. — An  empoyee  stopped  in  a 

67.  Peers  v.  DeCarion  &  Co.,  5  N.  Y.  St.  Dep.  Rep.  425,  12  N.  C.  C.  A. 
389. 

68.  Turgeon  v.  Fox  Co.,  1  Cal.  I.  A.  C.  D.,  (1914),  7,  7  N.  C.  C.  A.  429. 

69.  Clark  v.  N.  W.  Pac.  R.  Co.,  1  Cal.  I.  A.  C.  D.,  (1914),  6,  7  N.  C.  C.  A. 
428 

70.  Cox  v.  U.  S.  Coal  &  Coke  Co.,  80  W.  Va.  295,  92  S.  E.  559,  15  N.  C. 
C.  A.  271;    In  re  Jane  H.  Graves,  2nd  A.  R.  U.  S.  C.  C.    264;  In  re  Thomas 
M.  Custer,  2nd  A.  R.  U.  S.  C.  C.  265. 

592 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    276 

room,  which  he  had  to  pass  through  on  his  way  back  from  lunch- 
eon, and  s;it.  down,  holding  a  girl  on  his  knee,  until  work  time.  In 
arising  from  his  seat  he  placed  his  hand  on  a  last  of  a  monograM 
machine  to  assist  himself  in  rising,  when  the  stamping  device  of 
the  machinr  came  down  upon  his  hand.  "It  is  apparent  from 
this  recital  of  facts  that  there  was  no  causal  connection  between 
the  employment  and  the  injury.  It  was  no  part  of  the  employ- 
ment to  wait  for  20  minutes  under  the  circumstances  disclosed  in 
the  packing  room,  although  the  employee  was  required  to  pass 
through  it  in  a  reasonable  and  orderly  way  to  reach  his  labor. 
Whatever  else  may  be  said  respecting  his  manner,  of  spending 
that  period  of  time,  plainly  it  was  no  part  of  his  duty  and  had  no 
relations  to  it.  The  injury  occurred  while  he  was  attempting  to 
extricate  himself  from  a  posture  and  course  of  behavior  utterly 
foreign  to  the  business  of  the  subscriber.  That  risk  was  not  in- 
cidental to  his  employment.  The  subscriber  was  in  no  wise  re- 
sponsible for  it.  It  was  intentionally,  intelligently  and  volunta- 
rily i'ic. med  by  the  employee  on  an  escapade  of  his  own.  Condi- 
tions may  arise  where  the  employee  on  the  way  to  or  on  the  return 
from  meals  may  be  injured  on  the  master's  premise*  as  a  rational 
result  of  the  contract  of  service  although  not  actually  engaged  ;-t 
the  moment  in  the  work  for  which  he  was  hired."71 

A  car  inspector  fell  from  a  trestle  on  the  premises  of  his  em- 
ployer, while  on  his  way  home  to  dinner,  traveling  over  the  rail 
road  in  preference  to  other  ways,  with  the  permission  of  the  em- 
ployer, and  while  receiving  pay  for  the  time  necessary  to  go  and 
come  from  his  meals.  After  deciding  that  the  case  did  not  fall 
within  the  rule  allowing  compensation  for  accidents  occurring  up- 
on the  premises  of  the  employer  the  court  said:  "Tested  by  the 
general  character  of  the  undertaking  in  which  the  deceased  was 
engaged  at  the  time  of  the  accident  the  latter  did  not  arise  in  the 
course  of  or  spring  out  of  his  employment.  Such  a  trip  of  an  em- 
ployee as  he  was  taking  is  not  under  ordinary  circumstances  part 
of  the  employment.  It  is  true  that  it  has  been  held  many  ir 

71.  Rochford'a  Case  (Mass.).  (1919),  124  N.  E.  891.  5  W.  C.  L.  J.  248; 
In  re  Savage.  222  Mass.  205,  110  N.  E.  283;  Moore's  Case,  225  Mass.  258. 
114  N.  E.  204:  In  re  OToole,  229  Mass.  165.  118  N.  E.  303.  1  W.  C.  L.  J. 
620. 

593 

W.  C.— 38 


§  276  WORKMEN'S  COMPENSATION  LAW 

that,  where  an  employer  requests  or  customarily  permits  his  em- 
ployees to  eat  their  meals  upon  his  premises  or  in  some  place  pro- 
vided for  them,  the  temporary  interruption  to  their  work  thus 
caused  will  not  be  regarded  as  terminating  their  character  as  em- 
ployees or  as  excluding  them  from  the  protection  of  such  a  la^v 
as  our  Compensation  Act  (Consol.  Laws  c.  67).  Highley  v.  Lan- 
cashire, etc.  Ry.  Co.,  9  B.  W.  C.  C.  496,  501 ;  Blovelt  v.  Sawyer,  6 
W.  C.  C.  16;  Mottis  v.  Lambeth  Borough  Council.  8  W.  C.  C.  1. 
This  view  is  in  accordance  with  the  rule  which  prevailed  in  negli- 
gence cases.  Heldmaier  v.  Cobbs,  195  111.  172,  62  N.  E.  853 ;  Riley  v. 
Cudahy  Packing  Co.,  82  Neb.  319,  117  N.  W.  765 ;  Thomas  v..  Wis. 
Cent.  Ry.  Co.,  108  Minn.  485, 122  N.  W.  456,  23  L.  R.  A.  (N.  S.)  954 
But  no  case  has  been  cited  or  found  where  an  employee  going  for 
such  a  purpose  to  his  home  or  other  place  selected  by  him  a  sub- 
stantial distance  away  from  the  'ambit,'  of  his  employment  and 
from  the  employer's  premises  has  been  regarded  as  so  engaged  in 
the  latter 's  business  that  an  accident  then  happening  to  him  would 
be  held  to  be  one  arising  out  of  and  in  the  course  of  his  employment. 
On  the  contrary,  it  has  been  uniformly  held  that  it  did  not  so 
arise.  Boyd  on  Workmen's  Compensation  Section  481;  Ruegg  on 
Employer's  Liability  &  Workmen's  Comp.  377;  Brice  v.  Lloyd, 

2  B.  W.  C.  C.  26;  Hoskins  v.  Lancaster,  3  W.  C.  C.  476,  478, 
479;  Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243.  "72 

A  girl  employee  was  injured  while  engaged  in  riding  a  truck, 
during  her  half  hour  intermission  for  lunch,  according  to  a  usual 
custom  known  to  and  approved  by  the  employer.  During  the  lunch 
period  the  employees  were  at  liberty  to  remain  on  the  premises  or 
not  as  they  might  choose.  It  was  held  that  the  accident  occurred 
in  the  course  of  the  employment  and  arose  out  of  the  employ- 
ment.73 

Where  an  employee  was  expected  to  eat  lunch  and  spend  the 
noon  hour  at  a  factory,  and  to  use  the  elevator  when  the  occasion 
demanded,  and  he  was  found  crushed  between  the  elevator  and  the 

72.  Mclnerney  v.  Buffalo  &  S.  R.  Corp.,  225  N.  Y.  130,  121  N.  E.  806,  3 
W.  C.  L.  J.  494. 

73.  Thomas  v.  Proctor  &  Gamble  Mfg.  Co.,  104  Kan.  432,  179  Pac.  372, 

3  W.  C.  L,.  J.  712. 

594 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    276 

gate  during  the  noon  hour,  it  will,  in  the  absence  of  direct  evidence 
to  the  contrary,  be  presumed  that  the  cause  of  the  injury  arose 
out  of  and  in  the  course  of  the  employment,  and  that  at  the  time 
of  the  accident  deceased  was  performing  duties  connected  with  his 
employment.74 

A  crippled  engineer,  who  was  warned  not  to  cross  a  certain  rail- 
road bridge  when  crossing  the  river,  did  use  the  bridge  contrary 
to  orders,  and  was  struck  by  a  train  and  killed,  while  on  his  way 
to  luncheon.  It  appeared  that  the  employer  had  provided  no  place 
for  employees  to  lunch  at  the  end  of  the  bridge  where  they  worked. 
There  were  other  bridges  across  the  river,  but  as  to  their  location, 
with  reference  to  the  place  of  employment,  there  was  a  lack  of 
evidence.  The  court  said:  "Inasmuch  as  an  injury  occurring 
during  the  noon  hour  only  arises  out  of  and  in  the  course  of  the 
employment  when  the  employee  is  using  a  way  which  he  had  a 
right  to  use  and  which  was  the  only  available  way,  or  as  safe  as 
any  other  available  way,  to  reach  the  place  he  was  to  eat  his  lunch, 
it  was  incumbent  on  the  administratrix  to  establish  those  facts 
by  competent  evidence.  The  record  is  silent  upon  that  question 
and  simply  does  not  show  whether  or  not  there  was  such  an  avail- 
able way  other  than  the  crossing  of  the  railroad  bridge,  *  *  * 
As  it  appears  from  the  record  that  the  deceased  was  violating  an 
instruction  of  his  employer,  given  by  the  superintendent  in  cha^e 
of  the  work,  when  the  accident  occurred,  the  injury  cannot  be  said 
to  have  arisen  out  of  and  in  the  course  of  the  employment."" 

An  employee  fell,  while  she  was  ascending  the  granite  steps  of 
her  employer's  premises,  on  her  way  back  from  lunch.  She  was 
carrying  a  Gladstone  bag  about  18  inches  long  and  about  a  fojt 
high,  and  a  grip,  with  a  sweater  under  her  arm,  all  of  which  were 
her  personal  belongings.  The  board  found  that  the  fall  was  caus- 
ed by  accidentally  striking  her  foot  against  the  top  step,  that  the 
employee  was  in  good  health,  and  no  physical  ailment  or  anything 
about  her  personal  baggage  contributed  to  her  fall.  The  court,  in 

74.  Humphrey  v.  Indus.  Comm.  of  111.  et  al.,  285  111.  372,  120  N.  B.  816, 
3  W.  C.  L.  J.  102. 

75.  Nelson  R.  Const  Co.  v.  Indus.  Com.  of  111..  286  111.  632,  122  N.  E. 
113,  (1919),  18  N.  C.  C.  A.  1035. 

595 


§  276  WORKMEN'S  COMPENSATION  LAW 

affirming  the  finding  of  the  board  that  the  hazard  of  falling  was 
an  incident  of  the  employment  and  not  a  danger  common  to  the 
community,  and  that  her  injury  arose  out  of  and  in  the  course  of  her 
employment,  said:  "If  the  intestate  had  fallen  and  received  the 
injuries  she  did  while  actively  engaged  in  the  performance  of  her 
duties,  the  risk  and  harm  of  that  fall  would  have  been  an  accident 
and  hazard  of  her  employment  although  the  cause  of  her  fall  migut 
rest  in  pure  conjecture  and  speculation.  *  *  *  When  the  in- 
testate fell  she  was  not  in  the  active  performance  of  her  duties, 
but  was  upon  the  premises  of  the  subscriber  and  in  its  employ- 
ment. *  *  *  The  risk  of  a  fall  upon  machinery,  upon  steps 
or  passageways  or  over  obstructions  to  travel,  is  a  hazard  to  a  de- 
gree common  to  all  persons  who  enter  or  seek  to  enter  a  manufac- 
tory or  a  mercantile  building  or  other  building  for  business  or  for 
pleasure."76 

Where  an  employee  tripped,  while  going  down  stairs  011  his  way 
out  to  lunch,  and  fell,  sustaining  injuries  which  caused  his  death, 
it  was  held  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment,  the  court  saying  that,  "the  leaving  of  the  premises 
where  he  was  employed  was  so  closely  connected  with  the  employ- 
.nient  as  to  render  it  a  necessary  incident  to  it."  TT 

Where  a  hospital  superintendent  was  struck  and  killed  by  a 
street  car  on  his  way  home  to  dinner,  compensation  was  disallowed, 
because  of  the  insufficiency  of  the  evidence  to  show  that  deceas- 
ed's death  arose  out  of  and  in  the  course  of  his  employment.78 

Where  an  employee  was  sitting  on  a  large  pieee  of  rubber  in  a 
room  in  the  factory,  at  the  noon  hour,  eating  lunch,  according  to 
a  custom  tacitly  consented  to  by  his  employer,  when  a  pile  of  rub- 
ber fell  upon  him  and  broke  his  leg,  it  was  held  that  at  the  time  cf 

76.  Halletts'  Case,  232  Mass.  49,  121  N'.  E.  503,   (1915),  18  N.  C.  C.  A. 
1022,  3  W.  C.  L.  J.  481.     For  a  former  decision  in  the  foregoing  case  see 
230  Mass.  326,  119  N.  E.  673. 

77.  Hoffman  v.  Knisely  Bros.,  199   111.  App.   530,  15  N.  C.  C.  A.  235; 
Johnson  Coffee  Co.  v.  McDonald, —  Tenn.  — ,  (1920),  226  S.  W.  215. 

78.  Draper  v.  Regents  of  Univ.  of  Mich.,  195  Mich.  449,  161  N.  W.  956, 
14  N.  C.  C.  A.  934. 

596 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    276 

the  accident  the  employee  was  performing  a  service  growing  out 
of  and  incidental  to  his  employment.79 

An  employer  sustained  serious  bums  as  the  result  of  an  explo- 
sion of  gasoline  which  occurred  while  deceased  was  lighting  bis 
pipe,  in  a  tool  house  to  which  he  and  his  companion  had  resorted 
for  the  purpose  of  eating  their  lunch.  There  were  tools,  some  gaso- 
line and  a  stove  therein,  the  fire  having  been  banked  with  sand  and 
ashes.  It  was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment,  for  the  reason  that  deceased  was  doincj 
a  reasonable  and  natural  thing  in  seeking  shelter  during  the  noon 
hour  for  the  purpose  of  eating  his  lunch;  that  there  was  no  evi- 
dence that  he  knew  there  was  gasoline  in  the  tool  house  and  that 
it  would  vaporize  and  explode ;  that  he  violated  no  rule  in  so  doin£ ; 
and  that  the  evidence  was  sufficient  to  sustain  the  conclusion  that 
he  was  within,  and  entitled  to  compensation  under,  the  act.80 

Where  an  employee  fell  into  a  river  and  was  drowned,  while 
going  to  a  toilet  during  the  lunch  hour,  compensation  was  allowed 
to  his  dependents.  The  court  held  that  the  accident  arose  out  of 
and  in  the  course  of  his  employment.81 

Where  workmen  were  accustomed  to  place  their  bottles  of 
coffee  in  the  mouth  of  a  galvani/ed  pipe  discharging  heated  air, 
and  claimant  was  injured.  l>\  coming  in  contact  with  a  revolving 
fan  when  he  attempted  to  do  so  through  a  door  in  a  different  place, 
it  was  held  that  the  accident  did  not  arise  out  of  the  employment/3 

Where  an  employee  was  injured  when  he  collided  with  another 
employee  while  running  to  the  time  clock  when  the  whistle  blew 
at  noon,  it  was  held  that  the  accident  arose  out  of  the  employ- 
ment.83 

79.  Racine  Rubber  Co.  v.  Indus.  Comm.,  165  Wis.  600,  162  N.  W.  664,  15 
N.  C.  C.  A.  280;  In  re  Francis  W.  Quinlin,  3rd  A.  R.  U.  S.  C.  C.  171. 

HO.  Haller  v.  City  of  I^ansing.  195  Mich.  753,  162  N.  W.  335,  14  N.  C.  C. 
A.  950. 

81.  Milwaukee  Western  Fuel  Co.  v.  Indus.  Comm.,  159  Wis.  635,  150  N. 
W.  988.  12  N.  C.  C.  A.  77. 

82.  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368. 

83.  Rayner  v.  Sligh  Furniture  Co..  180  Mich.  168.  146  N.  W.  665.  4  N. 
C.  C.  A.  851,  L.  R.  A.  1916A,  22. 

597 


§  276  WORKMEN'S  COMPENSATION  LAW 

A  foreman  of  a  logging1  crew  was  found  dead,  upon  the  return 
of  other  members  from  lunch.  He  had  evidently  been  killed  in- 
stantly by  an  explosion  of  dynamite.  It  was  customary  to  dyna- 
mite out  any  stumps  which  obstructed  the  roadways.  It  was  held 
that  the  evidence  was  sufficient  to  warrant  a  finding  that  the 
employee's  death  was  due  to  an  accident  that  arose  out  of  and  in 
the  course  of  the  employment,  and  there  was  no  evidence  that 
the  injury  was  self  inflicted.84 

An  employee  who  was  working  on  top  of  a  roof  when  he  was 
called  to  lunch  by  the  foreman,  started  to  come  down  a  rope 
instead  of  a  ladder  provided  for  that  purpose,  and  was  fatally 
injured.  In  holding  that  the  accident  arose  out  of  and  in  the  course' 
of  the  employment  the  court  said:  "If  when  the  call  to  come  to 
lunch  was  made,  Mr.  Clem,  in  responding  to  the  call,  had  inad- 
vertently stepped  into  an  opening  in  the  uncompleted  roof,  or  in 
company  with  others  had  in  the  attempt  to  reach  the  ladder  got 
too  near  the  edge  of  the  roof  and  fallen  and  been  hurt,  would  it 
be  claimed  that  the  injury  did  not  arise  out  of  arid  in  the  course 
of  his  employment  ?  The  getting  of  his  luncheon  under  the  condi- 
tions shown  was  just  as  much  a  part  of  his  duty  as  the  laying  of 
a  board  or  the  spreading  of  the  roofing  material."85 

An  employee,  who  was  charged  with  the  control  and  care  of  two 
horses,  rode  one  to  a  watering  trough  at  noon,  contemplating  rid- 
ing him  to  his  home  afterwards,  where  he  was  going  for  lunch. 
Before  reaching  the  trough  the  horse  threw  him  and  he  sus- 
tained serious  injuries  which  resulted  in  his  death.  It  was  held 
that  the  retention  and  control  included  the  care  of  the  horses,  at 
least  to  the  extent  of  seeing  that  they  were  given  water  and  thrat 
during  this  time  the  deceased  was  within  his  employment.  The 
accident  arose  out  the  employment,  as  the  deceased  was  on  his 
way  to  perform  his  duty  at  the  time  of  the  injury,  although  he 
may  have  had  in  mind,  at  the  time  of  the  injury,  the  doing  of 

84.  Bekkedal  Lbr.  Co.  v.  Indus.  Comm.  of  Wisconsin,  168  Wis.  230,  169 
N.  W.  561,  17  N.  C.  C.  A.  952. 

85.  Clem  v.  Chalmers  Motor  Co.  et  al.,  178  Mich.  340,  144  N.  W.  848,  4 
N.  C.  C.  A.  876,  L.  R.  A.  1916A.  352. 

598 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT,        §   276 

something  else  not  within  the  scope  of  his  employment,  after 
watering  the  horses.86 

Where  an  employee  was  injured,  while  using  the  elevator 
provided  for  use  in  reaching  the  department  where  she  worked, 
her  injuries  arose  out  of  and  in  the  course  of  her  employment, 
even  though  she  was  leaving  the  building  during  the  noon  hour  to 
purchase  a  theater  ticket." 

Where  an  employee  sustained  injuries  while  going  to  luncheon 
by  falling  on  a  stairway  and  spraining  her  ankle  it  was  held 
that  she  was  entitled  to  compensation,  even  though  the  employer 
had  no  control  over  the  stairway,  it  being  the  only  means  of 
egress  open  to  employees.88 

Where  an  employee,  who  quit  work  a  minute  before  lunch  time, 
was  injured  by  overalls  striking  him  in  the  eye  when  thrown  at 
him  in  a  spirit  of  play  by  a  fellow  employee,  it  was  held  that 
there  was  no  interruption  of  the  relation  of  employer  and 
employee  because  of  the  fact  that  he  was  preparing  to  go  to 
luncheon,  and  that  the  injury  was  therefore  sustained  in  the 
course  of  the  employment.  In  connection  with  this  case  it  must 
be  remembered  that  under  the  Ohio  Act  it  is  not  necessary  that 
the  accident  arise  out  of  the  employment.88 

Compensation  was  awarded  for  an  injury  sustained  by  an 
employee  in  getting  down  from  a  stool  on  which  he  had  been  eat- 
ing at  the  place  of  his  employment.80 

The  English  rule  is  that  injuries  received  by  employees  while 
seeking  refreshments  are  considered  to  have  arisen  out  of  and  in 
the  course  of  employment.81 

86.  Pidgeon  v.  Employer's  Liab.  Assur.  Corp.,  216  Mass.  51,  102  N.  E. 
932.  4  N.  C.  C.  A.  616. 

87.  White  v.  Slattery,  —  Mass.  — ,  127  N.  E.  597,  (1920),  6  W.  C.  L.  J. 
323. 

88.  In  re  Sundine,  218  Mass.  1,  5  N.  C.  C.  A.  616,  L.  R.  A.  1916A,  318. 
105  N.  E.  433;  Papineau  v.  Indus.  Ace.  Comm..  —  Cel.  App.  — ,  (1920).  1R7 
Pac.  108,  5  W.  C.  L.  J.  492. 

89.  In  re  Mack,  Ohio  I.  C.,  (1914).  7  N.  C.  C.  A.  432. 

90.  Crouch  v.  Mass.  Employee's  Ins.  Ass.,  Mass.  W.  C.  C.,  (1913),  401, 
7.  N.  C.  C.  A.  432. 

91.  Carinduff  v.  Gllmore,   48  Ir.  Law   Times   137,  7   B.  W.   C.  C.  981; 
Low  v.  General  Steam  Fishing  Co.,  25  Times  L.  R.  787,  53  Sol.  Jo.  763; 

599 


§  276  WORKMEN'S  COMPENSATION  LAW 

A  chauffeur's  assistant  had  gone  all  day  without  food.  In  the 
evening,  when  returning,  he  left  the  truck  to  get  something  to 
eat.  and  was  struck  by  a  car  which  caused  his  death.  The  court 
said :  ' '  The  natural  inference  from  the  proof,  aided  by  the  pre- 
sumption of  section  21  of  the  Workmen's  Compensation  Law 
(Consol.  Laws,  c.  67),  leads  to  the  conclusion  that  from  breakfast 
until  4  o'clock,  when  the  accident  occurred,  the  deceased  had  had 
no  food,  and  that,  being  hungry,  he  had  started  across  the  street 
to  get  some  cakes  with  which  he  might  presently  stay  his  hunger, 
Matter  of  Driscoll  v.  Gillen  &  Sons,  226  N.  Y.  12,  123  N.  E.  863, 
affirming  187  App.  Div.  908,  173  N.  Y.  Supp.  825.  The  case 
is  comparable  to  those  where  employees  are  killed  or  injured  while 
seeking  shelter  from  a  storm,  or  while  going  to  a  nearby  place 
to  answer  the  calls  of  nature.  Moore  v.  Lehigh  Valley  R.  R.  Co., 
169  App.  Div.  177,  154  N.  Y.  Supp.  620;  Krawczyk  v.  Mac- 
Namara,— App.  Div.—,  173  N.  Y.  Supp.  912  .  It  is  wholly  unlike 
those  where  accidents  occur  during  the  noon  hour,  when  employees 
are  on  their  way  to  or  from  the  plant  to  get  their  noonday  meals. 
In  that  class  of  cases  injuries  are  received  during  a  definite  period 
set  apart  as  belonging  exclusively  to  employees,  during  which  they 
may  go  where  they  choose  and  do  what  they  please,  subject  to  no 
orders  from  their  employers  and  freed  from  all  duty  or  responsi- 
bility in  reference  to  their  employment.  In  this  instance  the  em- 
ploye was  at  all  times  in  the  immediate  vicinity  of  his  employer's 
truck,  which  had  stopped  but  momentarily,  and  his  duty  to  care 
for  it,  to  return  to  it,  and  help  bring  it  home,  had  not  ceased. 
It  was  not  as  if  the*  truck  had  been  placed  in  a  garage,  while  the 
deceased  upon  his  own  time,  had  gone  to  a  restaurant  to  get  a 
meal.  Nor  was  it  as  if  the  deceased  had  abandoned  the  truck,  and  had 
gone  to  a  saloon  or  drug  store,  not  to  satisfy  a  need  of  eating, 
because  of  an  omitted  meal,  but  to  regale  himself  with  refreshing 

Martin  v.  Lovibond,  7  B.  W.  C.  C.  243;  Keenan  v.  Flemington  Coal  Co., 
40  Scot.  L.  R.  144,  10  Scot,  L.  T.  409;  Earnshaw  v.  Lancashire  &  Y.  R. 
Co.,  5  W.  C.  C.  28;  Morris  v.  Lambeth  Borough  Council,  22  Times,  L.  R. 
22;  McLaughlin  v.  Anderson,  48  Scot.  L.  R.  349,  4  B.  W.  C.  C.  376;  Blovelt 
v.  Sawyer,  20  Times  L.  R.  105;  McKrill  v.  Howard,  2  B.  W.  C.  C.  460.  A 
a  digest  of  the  decision  in  each  of  the  above  cases  can  be  found  in  L.  R. 
A.  1916A,  (note)  320.  See  also  7  N.  C.  C.  A.  (note)  431-433. 

600 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    276 

drinks  ,-md  otherwise  indulge  himself,  it  was  necessary  for  the 
continuance  of  his  work  that  lie  should  have  eaten.  The  deceased 
was  hungry,  because  his  'employment  that  day  had  left  him  with- 
out food  many  hours,  and  it  was  precisely  as  if  the  deceased  had 
descended  from  the  truck  on  a  hot  day  to  get  a  glass  of  water 
to  satisfy  his  thirst.  It  seems  to  me  that  the  deceased  did  not  step 
out  of  his  employment  when  he  went  toward  the  bakery  to  get  some 
cakes  to  carry  to  the  truck,  in  order  to  eat  the  same  in  the  journey 
home,  and  that  his  death  arose  in  the  course  of  his  employment." 

An  employee  of  a  city,  during  the  noon  hour  of  a  day  lie  had 
heen  hauling  coal  from  a  pile  near  a  railroad,  sat  on  the  railroad 
track  to  eat  his  luncheon,  and  while  leaning  against  a  car,  was 
injured  when  the  car  kicked  or  jostled  by  a  locomotive  The  court 
said:  "The  board  was  justified  in  finding,  if  not  constrained  to 
find,  that  the  accident  did  not  arise  out  of  his  employment.  Hag- 
gard was  not  in  a  place  in  which  it  was  necessary  for  him  to  b.> 
in  the  course  of  his  work,  or  in  going  to  or  coming  therefrom.  The 
act  in  which  lie  was  engageJ  when  injured  had  no  relation  to  his 
employment;  indeed,  his  going  upon  the  railroad  track  seems  to 
have  been  in  violation  of  St.  1906,  c.  463,  part  2,  sec.  232,  although 
the  decision  of  this  case  is  not  based  on  that  statute.  Pumiciello's 
Case.  21! i  .Mass.  488,  107  N.  E.  349;  Ross  v.  .John  Hancock 
,Mut.  Life  Ins.  Co.,  222  Mass.  560,  111  N.  K.  3!M);  Uorin's  Case.  . 
M.iss.  .  124  N.  K.  891,  He  chose  'to  go  to  a  dangerous  place  where 
In  had  no  business  to  go,  incurring  a  danger  of  his  own  choosini: 
and  one  altogether  outside  any  reasonable  exercise  of  his  employ- 
ment."" 

.  Where  employees  in  the  basement  of  a  brcw.-ry  habitually  went 
to  the  ground  floor  for  fresh  air  and  refreshment  during  the  noon 
hour,  and  one  was  killed  by  falling  into  an  elevator  shaft  while 
u'cttini.'  fresh  air.  the  court  said:  "If  the  deceased  had  been  killed 
while  eating  lunch  in  this  room,  his  death  would  have  occurred  in 
the  course  of  his  employment.  .Matter  of  Mdnery  v.  B.  &  S.  K. 
Corp.,  22:.  N.  Y.  130.  mi  \.  E.  806.  If.  during  the  lunch  hour. 

92.  Sztorr  v.  James  H.  Stannburry.  Inc.,  189  N.  Y.  App.  Div.  388.  179 
N    Y.  S.  586.  f,  \V    C.  I,   J.  » 

93.  Haggard's  Case.  —  Mass.  — ,  (1920).  126  N.  E.  565.  5  W.  C.  L.  J.  397. 

601 


§  276  WORKMEN'S  COMPENSATION  LAW 

he  fell  down  the  elevator  shaft  while  walking  about  on  the  ground 
floor  to  get  the  air,  to  go  to  the  toilet,  to  warm  up,  to  drink  beer, 
or  to  rest,  as  cellar  men  were  expected  to  do,  his  case  could  not 
logically  be  distinguished  'from  the  case  assumed.  It  must  be  pre- 
sumed that  he  was  present  on  the  ground  floor  for  some  one  or 
more  of  these  legitmate  purposes  of  employment,  that  while  so 
present  he  accidentally  fell  down  the  elevator  shaft,  and  that  while 
in  the  course  of  his  employment  he  was  killed."94 

A  carpenter  subject  to  dizzy  spells,  was  not  injured  in  the 
course  of  his  employment,  where  he  laid  his  hand  upon  a  hot 
stove,  while  cooking  his  lunch,  as  a  consequence  of  one  of  his  dizzy 
spells.95 

Where  a  street  car  company  employee  rode  home  to  lunch  on 
defendant's  car  and  alighted  therefrom  it  was  an  incident  of 
his  employment.  He  was  not  out  as  a  pleasure  seeker  or  a  church- 
goer. He  was  a  motorman  going  home  to  dinner  and  his  injury 
resulting  from  being  struck  by  a  passing  car  upon  alighting  was 
held  to  be  an  industrial  accident  to  be  born  by  the  industry.96 

Injuries  sustained  by  employees  during  lunch  hour  when  they 
are  at  liberty  to  do  as  they  please  are  not  compensable  under  the 
Federal  Act.97 

But. when  performing  acts  during  the  noon  hour  in  the  further- 
ance of  duties  of.  the  employment  injuries  sustained  are  compen- 
sable.98 

Where  board  is  furnished  as  part  of  the  employee's  pay,  she  has 
not  departed  from  her  employment  when  going  to  lunch.99 

Where  an  employee  went  to  sleep  on  the  ground  near  his  wagon 
after  eating  his  lunch  at  a  place  where  he  had  a  right  to  be  and  a 
mule  fell  upon  his  head,  it  was  held  that  the  injury  was  sustained 

94.  Donlon  v.  Kips  Bay  Brewing  &  Malting  Co.,  189  N.  Y.  App.  Div.  415, 
179  N.  Y.  S.  93,  5  W.  C.  L.  J.  429. 

95.  Neuberger  v.  Third  Ave.  Ry.  Co.,  183  N.  Y.  S.  348,  6  W.  C.  L.  J.  485. 

96.  Manchester  St.  Ry.  v.  Barrett,  265  Fed.  557,  6  W.  C.  L.  J.  421,  (1920)- 

97.  In  re  Chas.  F.  Lancaster,  2nd  A.  R.  U.  S.  C.  C.  247;   In  re  Oscar 
Bern,  2nd  A.  R.  U.  S.  C.  C.  248. 

98.  In  re  Wm.  E.  Schneider,  2nd  A.  R.  U.  S.  C.  C.  250;   In  re  Cliftou 
L.  Hedgpeth,  2nd  A.  R.  U.  S.  C.  C.  258. 

99.  In  re  Margaret  Leffel,  2nd  A.  R.  U.  S.  C.  C.  255. 

602 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    277 

while  in  the  performance  of  duty  and  compensation  was  awarded 
under  the  Federal  Act.1 

Where  a  servant  was  killed  during  the  noon  hour,  when  ho 
attempted  to  stop  his  team  from  running  away,  the  accident  occur- 
ring at  a  place  where  he  had  a  right  to  be  in  the  performance  of  his 
duty,  the  death  was  due  to  on  accident  arising  out  of  and  in  the 
course  of  the  employment.2 

§  277.  Going  to  Receive  Pay. — Where  an  employee  was  in- 
jured while  riding  upon  a  logging  train  while  on  his  way  to  obtain 
his  pay,  the  commission  found  that  the  plaintiff  was  performing  a 
service  growing  out  of  and  incidental  to  his  employment.  In  affirm- 
ing the  judgment  the  court  said:  "He  was  entitled  under  his  con- 
tract to  receive  compensation  for  his  services.  His  employer  directed 
him  to  go  to  a  place  some  distance  from  his  work  to  get  his  pay  and 
offered  him  the  means  of  transportation  for  going  there.  He  went 
in  obedience  to  the  duty  placed  upon  him  by  his  employer  and  acqui- 
esced in  by  him,  performing  the  last  act  under  the  contract,  whereby 
each  could  receive  the  full  benefit  thereof.  Had  the  employer  paid 
him  at  the  camp,  a  different  question  would  be  presented."  8 

A  railroad  employee  on  his  way  to  receive  his  pay  after  complet- 
ing his  day's  work  and  turning  in  his  slip,  walked  1000  feet  alone 
and  over  the  adjoining  tracks  to  reach  a  point  where  he  could 
catch  a  passing  freight  train  to  ride  to  a  point  where  he  could  re- 
ceive his  pay.  While  so  doing  he  was  struck  by  a  train  and  killed. 
There  were  many  other  and  safer  ways  of  reaching  the  street.  The 
commission  found  thaj  deceased  had  no  authority  to  be  at  the  place 
\vhore  the  accident  happened,  and  was  not  at  such  place  on  any 
business  connected  with  his  employment,  but  that  he  was  there  for 
purposes  of  his  own.  The  accident  did  not  arise  out  of  nor  in  the 
course  of  the  employment.  The  appellate  court  affirmed  the  find- 
ings of  the  commission.4 

1.  In  re  C.  B.  Payne.  3rd  A.  R.  U.  S.  C.  C.  171. 

2.  Brown  v.  Bristol  Last  Block  Co.,  —  Vt.  — ,  (1920),  108  All.  922,  5  W. 
C.  L.  J.  628. 

3.  Hackley-Phelps-Bonnell  Co.  v.  Indus.  Comm.,  165  Wis.  586,  162  N. 
W.  921,  15  N.  C.  C.  A.  278. 

4.  Ames  v.  N.  Y.  Cent.  R.  Co.,  178  App.  Dlv.  324,  165  N.  Y.  Supp.  84, 
15  N.  C.  C.  A.  279;    In  re  Oscar  S.  Reed,  2nd  A.  R.  U.  8.  C.  C.  246. 

603 


§  277  WORKMEN'S  COMPENSATION  LAW 

A  railway  employee  had  finished  his  run  and  then  had  two 
hours  off.  He  started  to  his  dentist  with  the  intention  of  stopping  off 
on  the  way  and  receiving  his  pay.  While  en  route  the  train  of  his 
employer  on  which  he  was  riding  collided  with  another,  injuring 
plaintiff.  The  court  held  that  the  accident  did  not  occur  while 
the  plaintiff  was  doing  the  duty  he  was  employed  to  perform,  nor 
was  it  a  natural  incident  of  his  work,  and  therefore  the  plaintiff 
was  entitled  to  his  action  for  damages  at  common  law.5 

A  collier  returned  to  consult  his  foreman  about  a  pay  check  with 
which  the  miner  was  dissatisfied.  He  did  not  intend  to  resume 
work  unless  the  dispute  was  satisfactorily  settled.  Not  gaining  any 
satisfaction  the  collier  proceeded  to  leave  the  premises  and  was 
knocked  down  by  a  coal  wagon  and  was  injured.  -It  was  held 
that  the  injury  did  not  arise  out  of  and  in  the  course  of  the  em- 
ployment.6 

Where  a  workman  was  employed  in  a  blacksmith  shop  in  which 
no  power  driven  machinery  was  operated,  and  although  his  place 
of  employment  might  not  have  been  within  the  act,  yet  since  it  was 
operated  in  connection  with  the  remainder  of  the  employer's  plant, 
and  the  employee  had  to  go  through  a  room  where  power  driven 
machinery  was  operated  to  get  his  pay,  he  was  entitled  to  the  pro- 
tection of  the  act  when  he  suffered  an  injury  through  the  horseplay 
of  other  employees  while  in  the  room  where  the  power  machinery 
was  operated.7 

A  farm  laborer  was  compelled  to  go  about  two  miles  to  receive 
his  pay  and  instruction  for  the  next  day's  work.  While  en  route, 
riding  with  a  fellow7  workman,  in  the  latter^s  cart  he  was  thrown 
out  and  injured.  It  was  held  that  the  accident  did  not  arise  out  of 
the  employment.8 

Where  two  employees  were  running  a  race  to  see  who  would  first 
reach  the  paymaster's  office  and  one  slipped  and  fell  on  the  polish- 

5.  Pierson  v.  Interborough  Rapid  Transit  Co.,  184  N.  Y.  App.  Div.  678, 
172  N.  Y.  Supp.  492,  3  W.  C.  L.  J.  186. 

6.  Phillips  v.  Williams,  (1911),  4  B.  W.  C.  C.  143. 

7.  Pekin  Cooperage  Co.  v.  Industrial  Bd.,  277  111.  53,  115  N.  E.  128. 

8.  Parker  v.  Pont,  (1911),  5  B.  W.  C.  C.  45;    Lasturka  v.  Grand  Trunk 
&  Pac.  Ry.  Co.,  (1913),  Alberta  Supreme  Court,  7  B.  W.  C.  C.  1031. 

604 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    278 

ed  floor,  it  was  held  that  the  accident  did  not  arise  out  of  the  em- 
ployment.9 

Where  an  employee  was  injured  while  standing  in  line  to  get  his 
pay  check  it  was  held  that  the  injury  arose  out  of  the  employment.1" 

Where  an  employee  was  on  his  way,  on  his  employer's  premises, 
to  obtain  his  pay  and  stepped  on  a  casting  which  rolled  and  caused 
him  to  fall  whereby  his  shoulder  was  dislocated,  it  was  held  that 
he  had  sustained  an  injury  in  the  course  of  his  employment.11 

The  English  rule  is  that  where  a  workman  remains  on  the  prem- 
ises or  returns  thereto  to  obtain  his  pay  after  work  ceases,  he  Is 
still  acting  in  the  course  of  his  employment.12 

§  278.  Going  to  Answer  a  Call  of  Nature. — A  warehouseman 
was  employed  in  a  warehouse  in  which  there  were  no  toilet  ac- 
commodations. While  engaged  in  the  course  of  his  employment,  de- 
ceased was  required  to  answer  a  call  of  nature.  He  sought  as  a 
matter  of  necessity,  shelter  under  a  freight  car  which  was  moved, 
and  he  was  killed.  "We  have  no  doubt  that  the  trial  court  was 
fully  justified,  under  the  showing,  in  finding  that  the  accident 
arose  out  of  and  within  the  course  of  the  employment.  It  occurred 
•  luring  working  hours.  There  were  no  toilet  accommodations  with- 
in two  blocks.  Decedent  was  of  necessity  compelled  to  attend  to 
his  call.  Defendant  was  negligent  in  not  providing  accommodations 
in  the  warehouse.  The  necessity  of  decedent's  immediately  re- 
tiring to  some  available  place,  coupled  with  the  absence  of  ac- 
commodations in  the  warehouse,  gave  rise  to  the  danger."18 

A  workman  was  on  his  way  to  use  a  toilet,  on  the  premises  of 
and  provided  by  the  employer  for  the  use  of  the  employees  when 

9.  In  re  Atwell,  Ohio  Indus.  Comm.,  (1915),  12  N.  C.  C.  A.  662. 

10.  Garls  v.  Pekin  Cooperage  Co.,  111.  Ind.  Bd..  (1914),  12  N.  C.  C.  A. 
552. 

11.  In  re  Phillips,  Ohio  St.  Ind.  Bd.,  (1913),  7  N.  C.  C.  A.  429. 

12.  Riley  v.  W.  Holland  ft  Sons,  (1911),  1  K.  B.  1029.  4  B.  W.  C.  C.  155; 
Molloy  v.  South  Wales  Anthracite  Colliery  Co.,  (1910).  4  B.  W.  C.  C.  65; 
Nelson  v.  Belfast  Corporation,   (1908),  42  Irish  L.  T.  223,  1  B.  W.  C.  C. 
158;    Riley  v.  W.  Holland  ft  Sons.  (1911).  104  L.  T.  371.  4  B.  W.  C.  C.  155; 
Lowry  v.  Sheffield  Coal  Co.,  (1907),  24  T.  L.  R.  142,  1  B.  W.  C.  C.  1. 

13.  State  ex  rel.  G.  N.  Express  Co.  v.  District  Court  of  Ramsey  Co..  142 
Minn.  410,  172  N.  W.  310.  (1919),  18  N.  C.  C.  A.  1041. 

605 


§  278  WORKMEN'S  COMPENSATION  LAW 

a  galvanizing  tank  exploded  throwing  molten  metal  upon  him  and 
severely  injuring  him.  In  a  suit  at  law  there  was  a  judgment  for 
the  defendant.  Affirming  the  judgment  the  court  held  that  the 
accident  arose  out  of  and  in  the  course  of  the  plaintiff's  employ- 
ment, and  that  his  remedy  was  under  the  compensation  act,  as  he 
was  injured  on  the  premises  and  at  the  plant  of  his  employer.14 

Compensation  was  allowed  for  the  death  of  an  employee  who  was 
drowned  by  falling  into  a  river  on  his  way  to  the  toilet,  during 
the  suspension  of  work  for  luncheon.  The  toilet  had  been  provided 
for  the  use  of  the  employees  by  their  employer.15  . 

Where  the  employer  failed  to  provide  a  toilet  and  the  employees 
used  a  place  in  another  building  belonging  to  the  employer  across 
the  street,  with  his  knowledge  and  assent,  it  was  held  that  an  em- 
ployee, who  was  struck  by  a  vehicle  and  killed  while  crossing  the 
street  to  reach  the  toilet,  suffered  an  accident  arising  out  'of  and  in 
the  course  of  his  employment.16 

Where  a  boat's  employee  fell  through  a  hatchway  while  going 
to  relieve  himself,  the  county  court  said  that  deceased  had  not  gone 
so  unnecessarily  far  that  he  had  traveled  outside  of  the  scope  of 
his  employment,  and  held  that  the  accident  arose  out  of  and  in  the 
course  of  his  employment.17 

The  defendant  did  not  have  separate  conveniences  for  women 
as  required  by  law.  Arrangements  were  made  for  use  of  those 
conveniences  in  the  building  of  an  adjoining  employer.  To  reach 
these  conveniences  claimant  had  to  cross  a  yard,  and  in  doing  so 
tripped  upon  a  block  of  wood  and  fell,  sustaining  injuries^  It 
was  held  that  the  accident  arose  out  of  and  in  the  course  of  -the 
employment.18 

14.  Welden  v.  Skinner  &  Eddy  Corporation,  103  Wash.  243,  174  Pac. 
452,  2  W.  C.  L.  J.  860;    Neice  v.  Farmers'  Co-operative  Creamery  &  Supply 
Co.,  133  N.  W.  878,  90  Neb.  470. 

15.  Milwaukee  Western  Fuel  Co.  v.  Indus.  Com.  of  Wis.,  159  Wis.  635, 
150  N.  W.  998,  12  N.  C.  C.  A.  76. 

16.  Zabriskie  v.  Erie  R.  R.  Co.,  86  N.  J.  L.  266,  92  Atl.  385,  4  N.  C.  C.  A. 
778,  L.  R.  A.  1916A,  315. 

17.  Armstrong  v.  Gregson  &  Co.,  (1916),  W.  C.  &  Ins.  Rep.  226,  15  N.  C. 
C.  A.  265. 

18.  Fearnley  v.  Bates  and  North  Cliffe,  Ltd.,  (1917),  W.  C.  &  Ins.  Rep. 
207,  86  L.  J.  K.  B.  1000,  15  N.  C.  C.  A.  266;    Hanley  v.  Boston  Elev.  Ry. 

606 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    278 

A  hostler  was  engaged  in  hauling  equipment  from  the  show 
ground  to  the  railroad,  and  left  his  team  while  he  went  to  the 
toilet  in  his  sleeping-car.  When  returning  to  his  team,  and  while 
he  was  crossing  the  tracks  which  lay  between  his  car  and  his  team, 
he  was  struck  and  injured  by  a  switch  engine.  The  court  affirmed 
a  finding  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment.19 

An  employee  was  struck  by  something  while  she  was  in  a  toilet 
room,  whereupon  she  looked  through  a  crack  to  see  where  the 
article  came  from,  when  a  girl  in  the  adjoining  room  thrust  a 
scissors  through  the  crack  and  into  her  eyes,  which  resulted  in 
an  impairment  of  her  vision.  The  commission  found  that  the  in- 
jury was  due  to  an  accident  which  arose  out  of  and  in  the  course 
of  the  employment.  The  appellate  court  reversed  the  finding  of 
the  commission  holding  that  the  accident  was  due  to  a  sportive 
act  of  a  co-worker,  who  in  no  way  represented  the  master,  and 
which  act  in  no  way  grew  out  of  or  was  connected  with  the  em- 
ployment.20 

Where  a  street  workman  stepped  on  a  rusty  nail  while  going  to 
a  nearby  toilet,  and  lockjaw  resulted,  it  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment.21 

An  employee  resorted  to  a  place  to  relieve  his  bowels,  and  when 
returning  was  struck  by  a  train  while  crossing  the  railroad  tracks. 
The  employees  were  furnished  a  place  for  this  purpose  and  the 
place  to  which  claimant  resorted  was  strictly  forbidden  to  be  used 
for  the  purpose.  It  was  held  that,  since  the  applicant  was  return- 
ing from  a  forbidden  act,  and  over  a  course  essentially  dangerous, 
the  accident  did  not  arise  out  of  the  employment." 

Co.,   (Mass.),  W.  C.  C.,  (1915),  12  N.  C.  C.  A.  565;    Houston  ft  T.  C.  R. 
Co.  v.  Turner,  91  S.  W.  562,  99  Tex.  547. 

19.  Hagenback  v.  Leppert.  64  Ind.  App.  — ,  117  N.  E.  631,  1  W.  C.  L.  J. 
64;    Madden  v.  Whitham,  36  N.  J.  L.  J.  113,  12  N.  C.  C.  A.  656. 

20.  De  Fillippis  v.  Falkenberg,  170  App.  Div.  153,  165  N.  Y.  8.  761,  12 
N.  C.  C.  A.  557. 

21.  Putnam  v.   Murray,  6  N.  Y.  St.  Dep.  Rep.  355,  12  N.  C.  C.  A.  556; 
Cino  v.  Morton  ft  Gorman  Contracting  Co..  5  N.  Y.  St.  Dep.  Rep.  387,  12  N. 
C.  C.  A.  79. 

22.  Senior  v.  Brodsworth  Main  Colliery  Co.,  Ltd..  1917  W.  C.  ft  Ins. 
Rep.  284,  16  N.  C.  C.  A.  918. 

607 


§  279  WORKMEN'S  COMPENSATION  LAW 

According  to  the  English  decisions,  if  an  employee  is  injured 
while  availing  himself,  or  is  in  the  act  of  going  to  avail  himself  of 
toilet  facilities,  the  accident  and  injuries  arise  out  of  and  in  the 
course  of  the  employment.  If  the  employer  furnishes  adequate 
facilities,  accidents  to  servants  while  seeking  relief  elsewhere  at 
places  of  their  own  choice,  are  not  covered  by  the  compensation 
acts.23 

Where  a  servant  was  found  dead  in  the  vault  of  a  toilet,  where 
he  had  a  right  to  go,  and  the  circumstances  tended  to  show  that  he 
was  killed  by  falling  therein,  such  evidence  in  the  absence  of  evi- 
dence to  the  contrary  warranted  a  finding  that  death  was  due  to  an 
accident  arising  out  of  and  in  the  course  of  the  employment.24 

§  279.  Injuries  Sustained  After  Work  Hours,  by  Employees 
Furnished  Lodging  on  the  Premises  and  to  Employees  Visiting 
the  Premises  on  Sundays  for  Purposes  not  Connected  With  the 
Employment. — Where  a  lumber  company's  employee  was  required 
by  his  contract  of  employment  to  sleep  on  the  premises  and  in  a 
bunk  furnished  by  the  master,  it  was  within  the  course  of  his 
employment  for  the  servant  to  remain  on  the  premises  and  use 
the  bunk  furnished  for  him,  and  when  he  suffered  an  injury  by 
a  straw  from  the  upper  bunk  falling  and  lodging  in  his  throat, 
the  injury  was  a  compensable  one,  for  at  the  time  of  the  injury 
he  was  in  the  employ  of  the  company,  under  its  protection  and 
using  the  things  which  it  furnished  to  him  for  his  use  during  the 
employment  and  as  incident  to  such  employment.  "The  general 
rule  under  the  authorities  is  that  when  the  contract  of  employment 
contemplates  that  the  employees  shall  sleep  upon  the  premises  of  the 
employer,  the  employee,  under  such  circumstances,  is  considered  to 
be  performing  services  growing  out  of  and  incidental  to  such  em- 
ployment during  the  time  he  is  on  the  premises  of  the  employer. 

23.  Rose  v.  Morrison,  4  B.  W.  C.  C.  277,  L.  R.  A.  1916A,  318;    Cook  v. 
Manver's  Main  Collieries,  7  B.  W.  C.  C.  696;    Cogdon  v.  Sunderland  Gas 
Co.,  1  B.  W.  C.  C.  156,  L.  R.  A.  1916A,  318;    Elliot  v.  Rex,  (1904),  6  W.  C. 
C.  27;    Thompson  v.  Flemington  Coal  Co.,    (1911),  48  Sc.  L.  Rep.  740,  4 
B.  W.  C.  C.  406. 

24.  Vulcan  Detinning  Co.  v.  Indus.  Comni.,  —  111.  — ,  (1920),  128  N.  E. 
917,  7  W.  C.  L.  J.  191. 

608 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    279 

Rucker  v.  Read,  W  X.  J.  L.  J.  48;  Chitty  v.  Nelson,  2  B.  \V. 
C.  C.  496;  Aldridge  v.  Merry  6  B.  W.  C.  C.  450;  Griffith  v.  Cole 
Bros,  et  al.,  (Iowa),  165  N.  \V.  f>77 :  Meyers  v.  Michigan  Cent. 
R.  Co.,  (Mich.),  165  N.  W.  703;  Cokolon  v.  Ship  Kentra,  5  B.  W. 
C.  C.  658;  International  &  G.  N.  R.  Co.  v.  Ryan,  82  Tex.  565, 
18  S.  W.  219."  The  injury  in  this  case  arose  out  of  and  in  the 
course  of  the  employment.25 

An  employee  was  injured  when  a  hut  on  the  premises  of  his 
employer  hlew  down  while  lie  was  in  bed.  The  employer  obtained 
permission  from  the  government  to  erect  houses  on  the  premises 
to  accommodate  the  workmen,  and  the  advertisement  for  workmen 
stated  that  the  hut  and  sleeping  accommodation  were  to  be  rent 
free  at  2  cents  a  day.  The  workmen  were  required  to  pay  half  the 
expense  of  keeping  an  attendant  to  care  for  the  huts,  but  this 
was  not  to  be  considered  as  rent.  On  the  evening  of  the  accident 
applicant  had  been  working  overtime  and  went  to  the  hut  and 
to  bed  at  9  p.  m.  About  10  p.  m.  a  storm  blew  the  hut  down  upon 
the  applicant,  mortally  injuring  him.  In  reversing  an  award  the 
court  said:  "Take  the  case  of  a  domestic  servant  where  there  is 
a  continuity  in  the  course  of  employment.  During  the  time  when 
the  domestic  servant  is  having  his  meals  on  the  employer's  premises 
or  sleeping  on  his  employer's  premises  'the  course  of  his  employ- 
ment' continues,  and  it  is  not  interrupted.  But  supposing  the 
servant  goes  out  for  a  few  hours  for  his  own  purposes,  'the  course 
of  the  employment'  is  thereby  interrupted.  The  contract  of  ser- 
vice remains;  he  is  still  in  his  employer's  service,  but  from  the 
time  he  goes  out  for  his  own  purposes  until  the  time  he  returns 
to  his  work  'the  course  of  the  employment'  is  interrupted,  and 
an  accident  to  him  would  not  be  an  accident  'in  the  course  of 
the  employment.'  Those  are  the  general  principles  which  must 
be  taken  as  settled.  And,  applying  those  to  the  present  case, 
the  workman  is,  in  my  opinion,  in  the  same  position  for  this  purpose 
as  if  he  was  merely  living  in  a  house  provided  by  his  employer, 
like  a  laborer  living  in  a  cottage  provided  by  his  employer  as 

25.  Holt  Lbr.  Co.  v.  Indus.  Comm.  of  Wis..  168  Wis.  381.  170  N.  W.  366, 
3  W.  C.  L.  J.  549,  18  N.  C.  C.  A.  1027:  In  Re  Thomas  Arthur,  2nd  A.  R. 
U.  S.  C.  C.  255;  In  Re  John  Medanich,  2nd  A.  R.  U.  S.  C.  C.  256. 

609 
W.  C.— 39 


§  279  WORKMEN'S  COMPENSATION  LAW 

part  of  the  remuneration  provided  for  his  services.  He  was  not 
living  in  the  hut  upon  any  term  of  contract  for  his  employer's 
benefit  that  he  should  be  there.  The  workman  was  given  the 
choice,  and  was  as  free  as  possible  to  come  or  go. '  '2G 

An  apartment  house  janitress  received  as  compensation  for  her 
services  five  dollars  monthly,  the  free  use  of  her  apartment,  and 
gas  for  the  same.  One  morning  when  about  to  sit  down  to  her 
breakfast  some  plaster  from  the  kitchen  ceiling  fell  on  the  claimant, 
injuring  her.  In  denying  that  the  accident  arose  out  of  and  in 
the  course  of  the  employment,  the  court  said:  "The  case  is  no 
different  than  it  would  be  if  the  claimant,  although  janitress  of 
the  building  in  question,  had  occupied  an  apartment  in  another 
building  and  the  accident  had  there  occurred.  In  no  proper  sense 
can  it  be  said  that  she  was  janitress  of  her  own  apartment,  merely 
because  it  happened  to  be  a  part  of  the  building  of  which  she  was 
the  janitress.  In  her  own  apartment  she  presided  over  her 
household  affairs  and  was  serving,  not  her  employer,  but  herself 
and  her  family.  If  this  award  can  be  sustained,  so  also  it  should 
be  sustained  if  the  plaster  had  fallen  on  her  at  night  while  she 
was  sleeping,  or  while  doing  any  ordinary  housework  for  the  re- 
quirements or  convenience  of  her  family.  At  the  time  of  the  acci- 
dent she  was  doing  nothing  for  her  employers,  nor  anything  in- 
cidental thereto.  Her  duty  to  them  did  not  require  her  presence 
in  her  apartment.  What  she  was  doing  was  personal  to  herself. 
It  was  entirely  disassociated  with  the  work  of  her  employer."27 

A  section  foreman  fell  from  a  trestle  on  Sunday,  a  time  when 
he  was  not  regularly  required  to  be  about  the  railroad.  His 
duties  were  not  connected  with  the  trestle,  and  it  was  not  shown 
that  he  was  there  by  the  direction  of  his  employer.  It  was  held 
that  the  foreman  did  not  lose  his  life  in  the  course  of  his  employ- 
ment, and  his  dependents  were  not  therefore  entitled  to  compen- 
sation.-8 

26.  Philbin  v.  Hayes,  119  L.  T.  R.  133,  17  N.  C.  C.  A.  947. 

27.  Lauterbach  v.  Jarett  et  al.,  189  App.  Dlv.  303,  178  N.  Y.  Supp.  480,  5 
W.  C.  L.  J.  100.     See  also  Daly  v.  Bates  &  Roberts,  224  N.  Y.  120  N.  E. 
118. 

28.  In  Re  Watkins,  Ohio  I.  C.,  (1914),  7  N.  C.  C.  A.  434. 

610 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMPLOYMENT.        §    279 

A  housekeeper  employed  ill  defendant's  hotel,  resided  at  the 
hotel,  her  duties  requiring  her  to  be  available  at  all  hours,  although 
her  active  duties  did  not  begin  until  eight  o'clock.  At  7  o'clock 
slic  was  injured  as  a  result  of  stumbling  over  a  pile  of  linen  while 
going  for  hot  water  i'or  toilet  purposes.  It  was  held  that  the  acci- 
dent arose  out  of  and  in  the  course  of  her  employment.-1' 

A  hotel  employee  went  shopping  after  her  day's  work.  Upon  re- 
turning she  fell  on  the  way  to  her  room  and  broke  her  arm.  In 
addition  to  her  wages  she  received  board  and  lodging  furnished 
l>y  her  employers.  After  working  hours  she  was  free  to  do  and 
go  as  she  pleased.  It  was  held  that  the  injury  did  not  arise  out 
of  and  in  the  course  of  her  employment.30 

A  workman,  whose  employment  required  him  to  occupy  sleeping 
and  living  quarters  furnished  by  the  government,  was  injured 
after  hours,  but  at  quarters.  It  was  held  that  he  was  injured  in 
the  course  of  his  employment.11 

An  employee,  furnished  quarters  on  a  boat,  left  the  boat  after 
working  hours  to  visit  a  neighboring  town,  and  was  drowned  when 
returning.  It  was  held  that  his  death  did  not  occur  in  the  course 
of  his  employment.82 

An  employee  sustained  an  injury  causing  his  death,  when  ho 
visited  a  building,  which  his  employer  had  contracted  to  con- 
struct. His  employment  status  was  not  in  effect  at  the  time,  the 
employee  having  visited  the  building  for  purposes  of  his  own,  and 
not  being  engaged  in  the  work  of  the  employer  at  the  time,  it  was 
held  that  the  injury  did  not  arise  out  of  and  in  the  course  of  the 
employment.33 

29.  Leonard  v.  Fremont  Hotel,  2  Cal.  I.  A.  C.  924,  (1915),  12  N.  C.  C. 
A.  667;    In  Re  John  H.  T.  Flattery,  3rd  A.  R.  U.  S.  C.  C.  168. 

30.  Doherty  v.  Employer's  Liab.  Assur.  Corp.,  Ltd.,  1  Mass.  W.  C.  C. 
460,  12  N.  C.  C.  A.  668;    Mahoney  v.  Sterling  Borax  Co.,  2  Cal.  I.  A.  C.  D. 
700,  (1915),  12  N.  C.  C.  A.  668. 

31.  In  re  Claim  of  C.  E.  Holt,  Op..  Sol.  Dep.  C.  &  L.  (1916),  302;  In  re 
Claim  of  Jenkins,  Op.  Sol.  Dep.  C.  &  L.  (1915).  334. 

32.  In  re  Claim  of  Jackson,  Op.  Sol.  Dep.  C.  &  L.  (1915).  320;  In  re 
Claim  of  Gilson,  Op.  Sol.  Dep.  C.  &  L.  (1915),  326;  In  re  Claim  of  Wm.  P. 
Brown.  Op.  Sol.  Dep.  C.  ft  L.  (1913),  328. 

33.  Lynn  T.  Employers'  Liab.  Assur.  Corp..  Ltd.,  2  Mass.  W.  C.  C.  507, 
(1914),  13  N.  C.  C.  A.  491. 

611 


§  280  WORKMEN'S  COMPENSATION  LAW 

A  garage  employee  was  injured,  when  he  visited  the  garage, 
where  he  was  employed,  on  a  holiday,  to  obtain  certain  articles  re- 
quired by  a  contestant  in  automobile  races.  The  employee  had 
been  given  a  car  for  his  own  pleasure  on  the  holiday.  It  was 
held  that  the  accident  did  not  arise  out  of  the  employment.34 

§  280.  Away  From  Place  of  Employment  on  Own  Business  or 
Business  Other  Than  Employer 's  — Where  an  employee  attempted 
to  work  through  two  shifts  in  order  that  he  might  relieve  the 
congested  condition  of  labor,  and  left  his  place  of  work  and  pro- 
ceeded to  an  adjoining  building  on  the  premises  to  sleep,  and  his 
immediate  superior,  in  order  to  a\yaken  him,  threw  a  brick  on 
top  of  the  house  where  he  was  asleep,  and  the  brick  went  through 
and  killed  the  employee,  the  act  of  the  superior  added  a  risk 
of  danger  fairly  within  the  contemplation  of  the  employer,  so  that 
the  servant's  death  resulted  from  an  accident  arising  out  of  and 
in  the  course  of  the  employment.35 

An  engineer,  during  his  vacation,  received  full  pay  and  was 
subject  to  his  employer's  call.  He  went  to  inspect  a  pumping 
station,  at  the  request  of  the  superintendent  of  his  employer,  in 
order  that  its  efficiency  might  be  increased.  He  drove  his  own 
automobile,  and  while  en  route  sustained  injuries  in  an  accident. 
In  deciding  that  the  accident  arose  ' '  out  of  and  in  the  course  of  the 
employment, ' '  the  court  said :  ; '  Did  he  go  upon  this  mission  vol- 
untarily or  because  of  the  request  of  his  superintendent?  The 
referee  finds  that  he  went  not  only  at  the  request  of  the  superin- 
tendent, but  in  pursuance  of  the  policy  which  the  company  follow- 
ed with  all  its  employees.  He  was  therefore  practically  under 
orders  and  in  the  performance  of  his  duty  when  he  was  injured."36 

An  employee  left  the  building  in  which  he  performed  his  duties 
and  went  to  another  building,  where  he  fell  down  an  elevator 
shaft.  The  board  found  that  at  the  time  of  the  accident  claimant 
had  no  duties  to  perform  at  the  building  where  the  accident  oc- 

34.  Held  v.  Cuyler  Lee,  2  Cal.  I.  A.  C.  719,  12  N.  C.  C.  A.  905. 

35.  Colucci  v.  Edison  Portland  Cement  Co.,  93  N.  J.  L.  332,    (1919), 
108  Atl.  313. 

36.  Messer  v.  Mfgr's  Light  &  Heat  Co.,  et  al.,  263  Penn.  5,  106  Atl.  85, 
3  W.  C.  L.  J.  791. 

612 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    2*0 

curred,  but  that  he  was  there  on  his  own  initiative,  and  that  there- 
fore the  accident  did  not  arise  out  of  and  in  the  course  of  the  em- 
ployment.37 

Where  a  night  watchman  left  his  duties  to  visit  the  owner  of 
a  boat  and  when  he  attempted  to  return  to  his  duties  he  jumped  into 
the  water,  and  died  later  from  the  effects  of  the  exposure,  it 
was  held  that  the  accident  did  not  arise  out  of  the  employment.3" 

Whore  a  railroad  employee  responded  to  a  fire  call  and  assisted 
in  fighting  a  forest  fire,  sustaining  injuries  while  so  doing,  it  was 
held  that,  despite  the  fact  that  there  was  a  statute  making  it  a  mis- 
demeanor to  refuse  when  called  upon  to  fight  fires,  the  accident  did 
not  arise  out  of  and  in  the  course  of  the  employment.39 

An  employee  was  killed  by  falling  down  an  elevator  shaft.  The 
duties  of  deceased  required  him  to  be  on  the  ground  floor  and 
under  no  circumstances  was  he  required  to  be  elsewhere  during 
his  employment.  In  the  absence  of  any  direct  evidence  showing 
that  the  accident  occurred  while  he  was  away  from  his  regular 
place  of  employment  in  the  performance  of  some  duty  connected 
with  his  employment,  compensation  must  be  denied.40 

Where  a  ship's  employee  went  ashore  to  provide  provisions  for 
himself,  and  was  drowned  in  an  attempt  to  return  to  the  boat,  the 
court,  holding  that  the  accident  which  resulted  in  the  death  of 
decedent,  did  not  arise  out  of  the  employment,  said:  "I  cannot, 
*  *  *  assent  *  *  *  .  to  the  *  °  *  proposition  which  was  made, 
to  the  effect  that  if  a  man  goes  on  shore  lawfully,  for  a  purpose 
which  must  have  been  contemplated  as  one  of  the  purposes  for 
\\hieh  lie  would  go  on  shore,  that  makes  him  on  shore  upon  the 
ship's  business  or  pursuant  to  any  duty  owed  to  his  employer."41 

37.  Borck  v.  Simon  J.  Murphy  Co.,  205  Mich.  472,  171  N.  W.  470,  18  N. 
C.  C.  A.  1042;  In  Re  Orville  J.  Pettijohn,  2nd  A.  R.  U.  S.  C.  C.  244;  In  Re 
W.  J.  Tyler.  2nd  A.  R.  U.  S.  C.  C.  246. 

38.  King  v.  State  Ins.  Fund,  184  N.  Y.  App.  Div.  453,  171  N.  Y.  Supp. 
1032.  2  W.  C.  L.  J.  921;  Weis  Paper  Mills  Co.  v.  Indus.  Comm..  —  111.  — . 
(1920).  127  X.  K.  732.  «  W.  C.  L.  J.  307. 

39.  Kennelly  v.  Stearns  Salt  and  Lbr.  Co.,  190  Mich.  628,  157  N.  W.  378, 
15  N.  C.  C.  A.  218. 

40.  Casualty  Co.  of  America  v.  Indus.  Ace.  Comm.,  176  Cal.  530,  169 
Pac.  76.  1  W.  C.  L.  J.  295.  15  N.  C.  C.  A.  233. 

41.  Parker  v.  Black  Rock   (owners  of),   (1915),    W.  C.  A    Ins.    Rep. 
369,  15  N.  C.  C.  A.  259. 

613 


§  280  WORKMEN'S  COMPENSATION  LAW 

A  teamster,  who  was  engaged  in  hauling  coal  from  a  mine  to 
customers,  was  killed  while  hauling  coal  to  his  own  home  on  his 
own  time.  It  was  held  that  the  accident  resulting  in  decedent's 
death  did  not  arise  out  of  and  in  the  course  of  the  employment.42 

Deceased  was  permitted  for  purposes  of  his  own  to  leave  his 
boat,  on  which  he  was  employed  as  chief  engineer.  "When  returning 
and  while  going  along  the  quay,  he  missed  his  bridge  leading  to 
the  ship,  and  fell  off  the  pier  and  was  drowned.  In  reversing  an 
award  of  compensation  the  House  of  Lords  said :  "  If  the  employee 
had  reached  the  ship  or  ladders,  by  which  the  ship  was  to  be 
boarded  he  might  properly  be  taken  to  have  been  directed  to  use 
them  as  being  part  of  the  vessel  on  which  he  was  living  as  an  in- 
cident to  his  employment.  But  was  the  quay,  by  which  he  was  ac- 
tually approaching  when  the  accident  happened,  a  place  where  he 
was  directed  to  be,  or  a  place  for  which  the  employers  had  any 
responsibility  ^it  all?  It  seems  to  me  that  this  question  ought  on 
broad  principles  to  be  answered  in  the  negative.  Surely  a  street 
in  Eamsgate  would  not  have  been  such  a  place  in  the  absence  of 
special  circumstances.  That  is  clear  from  principles  which  have 
been  firmly  laid  down.  In  order  to  make  it  such  a  placed  it  would 
be  necessary  to  prove  as  a  special  fact  that  the  engineer  was  di- 
rected to  use  it  for  some  object  in  which  he  was  employed.  Here 
there  was  no  direction.  He  was  allowed  leave  for  his  own  pur- 
poses. Was  the  quay,  then,  different  in  this  respect  from  a  street  ? 
It  is  said  that  it  was,  inasmuch  as  it  was  the  natural  way  of  pro- 
ceeding towards  the  place  where  the  ship  was  berthed.  But  a 
street  might  also  have  been  part  of  such  natural  way. '  '43 

Deceased  was  killed  by  an  electric  wire  while  carrying  laundry 
from  his  home  to  a  restaurant  run  by  his  wife  for  decedent 's  em- 
ployer. It  was  contended  that  deceased  was  performing  work  for 
his  employer  and  that  his  contract  of  employment  contemplated 
that  he  would  assist  his  wife  about  the  restaurant  in  addition  to 

42.  Sugar  Valley  Coal  Co.  v.  Drake,  64  Ind.  App.  — ,    117   N.  E.  937, 
1  W.    C.  L.  J.  594. 

43.  Charles  R.  Davidson  &  Co.  v.  M'Robb,   (1918),   A.  C.    304,    16  N. 
C.  C.  A.  912;    Spencer  v.  "Liberty"  (owners),   (1917),  W.  C.   &  Ins.  Rep. 
293,  16  N.  C.  C.  A.  913. 

614 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   280 

N 

caring  for  the  building  of  his  employer  on  the  latter 's  premi 
Upon  conflicting  testimony  the  court  held  that  the  accident  oc- 
curred when  deceased  was  performing  an  act  not  incidental  to  hi.- 
employment  and  away  from  his  regular  place  of  employment,  and 
therefore  the  accident  did  not  arise  out  of  and  in  the  course  of  the 
employment. 44 

Decedent  was  killed  by  an  automobile  while  going  to  a  point 
some  distance  from  his  place  of  employment  to  obtain  tobacco. 
The  court  declared  itself  to  be  of  the  opinion  that  it  could  not  be 
said  that  the-  employment  had  in  any  way  subjected  the  decedent 
to  the  hazard  to  which  lie  exposed  himself  in  going  for  the  tobac- 
co." 

Where  an  employee  whose  duties  necessitated  his  being  in  the 
basement  of  the  building  and  no  other  place  about  the  building, 
left  the  basement  and  was  injured  when  going  to  floors  above  in  an 
elevator,  the  court  held  that  the  deceased,  at  the  time  of  his  in- 
jury, being  away  from  his  work  and  performing  a  voluntary  act 
for  his  own  pleasure  or  satisfaction,  was  engaged  in  an  act  out- 
side the  scope  of  his  employment,  that  the  injuries  causing  his 
death  did  not  arise  out  of  and  in  the  course  of  his  employment.46 

"Where  a  girl  was  injured  when  her  skirt  entangled  in  a  pulley 
while  she  was  going  from  her  place  of  work  to  another  place  in 
the  same  room  to  seek  information  pertaining  to  her  work,  from 
an  older  girl,  it  was  held,  that  this  being  the  custom  in  this  place 
therefore  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment. 4T 

Where  an  employee  was  injured  in  the  course  of  his  employ- 
ment, necessitating  bandages,  and  was  severely  burned  at  home 
as  a  result  of  the  bandages  catching  on  fire,  it  was  held  that  the 

44.  Murphy  v.  Ludlum  Steel  Co..  182   App.   Div.  139,  169  N.   Y.   Supp. 
781,  16  N.  C.  C.  A.  901.  1  W.   C.   L.   J.  1122. 

45.  In  re  Betta,  64  Ind.  App.  — ,  118  N.  E.  551,  16  N.  C.  C.  A.  904,  1 
W.  C.  L.  J.  569. 

46.  Spooner  v.  Detroit  Saturday  Night  Co..  187  Mich.  125,  153  N.  W. 
657,  9  N.  C.  C.  A.  647. 

47.  Vreeland  v.  Cogswell  &  Boulter  Co.,  37  N.  J.  L.  J.  57;    Broadway- 
Coal  Mining  Co.  v.  Robinson,  150  S.  W.   1000,  150  Ky.  707. 


§  280  WORKMEN'S  COMPENSATION  LAW 

burn  was  not  caused  by  an  accident  arising  out  of  and  in  the 
course  of  the  employment.48 

A  railroad  conductor  who  was  injured  on  a  run  made  for  the 
sole  pleasure  of  the  employees,  but  with  the  employer's  permis- 
sion, was  not  injured  in  the  course  of  his  employment.49 

An  employee  reported  for  work,  and  before  starting  to  work  he 
left  the  premises  to  mail  a  letter  at  the  direction  of  a  fellow  work- 
man, and  while  away  he  met  with  an  accident  which  necessitated 
the  amputation  of  his  foot.  The  person  who  ordered  him  to  mail 
the  letter  was  not  a  foreman.  It  was  held  that  he  was  not  injured 
in  the  course  of  the  employment.50 

A  master's  duty  to  furnish  his  servants  a  safe  place  for  work 
extends  to  such  parts  of  his  premises  only  as  he  had  prepared  for 
their  occupancy  while  doing  his  work,  and  to  such  other  parts  as 
he  knows,  or  ought  to  know,  they  are  accustomed  to  use  while  do- 
ing, it,  and  when  a  sevant  goes  to  some  other  part  for  his  own 
convenience,  the  general  rule  is  that  he  is  regarded  as  a  licensee 
merely. 51 

A  waitress  entitled  to  ride  in  her  employer's  bus  while  on  per- 
sonal errands,  was  injured  while  riding  therein  on  her  way  back 
to  work,  due  to  the  negligence  of  the  chauffeur.  The  court  held 

48.  Re  Claim  of  Rockwell,  Op.  Sol.,  Dep.  C.  &  L.  (1915),  242. 

49.  In  re  Claim  of  Fitzpatrick,  Op.  Sol.,  Dep.  C.  &  L.  (1915),  306. 

50.  In  re  Deavers,  Ohio  Ind.  Comm.  (1914),  7  N.  C.  C.  A.  419. 

51.  Connell  v.  New  York  Central  &  H.  R.  R.  Co.,  144  App.  Div.  664,  129 
Supp.   666;    Pioneer  Mining  '&  Mfg.  Co.  v.  Talley,   43  So.    800,  152  Ala. 
162;    Sutton  v.  Wabash  R.  Co.,  152  111.  App.  138;    Lynch  v.  Texas   &  P. 
Ry.  Co.,  133  S.  W.  522,  Tex.  Civ.  App.  — ;  O'Brien  v.  Western  Steel  Co., 
13    S.     W.     402,    100    Mo.     182;     Mitchell-Tranter    Co.     v.     Ehmett,    65 
S.  W.  805,  23  Ky.   Law  Rep.  1788,  55  L.  R.  A.  710;    Kennedy  v.  Chase,  52 
Pac.  33,    119  Cal.  637;    Brown  v.    Shirley  Hill    Coal  Co.,  94  N.   E.  574,  4? 
Ind.    App.    354;    Ellsworth    v.  Metheny,    104  Fed.    119,  51    L.  R.    A.  389; 
Southern  Railway   Co.  v.  Bentley,  56  So.   249,   1  Ala.  App.   359;    Russell 
v.    Oregon  Short  Line  R.    Co.,  155  Fed.  22;     Pittsburg  Vitrified    Pav.   & 
Build.  Brick  Co.  v.  Fisher,  100  Pac.  507,  79  Kans.  576;    Northern  Coal  & 
Coke  Co.  v.  Allera,   104  Pac.  197,  46   Colo.  224;     Gooch   v.  Citizens  Elec- 
tric St.  Ry.  Co.,  88  N.  E.  591,  202  Mass.  254,  23  L.  R.   A.  (N.  S.)  960n.; 
Clapp's    Parking  Station  v.  Indus.  Ace.  Comm.,  --   Cal.  — ,    (1921),    197 
Pacific  369. 

616 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    281 

that  such  injury  did  not  arise  in  her  employment,  so  as  to  make 
her  and  the  ehauft'eur  fellow  servants,  thereby  requiring  her  to 
proceed  under  the  Workmen's  Compensation  Act.52 

Where  a  salesmanager  on  vacation  on  a  ranch  was  injured 
while  returning  from  a  post  office,  where  he  had  gone  to  answer 
a  military  questionnaire,  and  while  there  also  wrote  and  mailed  a 
reply  to  a  business  letter  from  his  employer,  received  at  the  ranch, 
it  was  held  that  his  injury  was  not  the  result  of  an  accident  aris- 
ing out  of  his  employment." 

Where  an  employee  was  injured  while  answering  a  call  as  a 
city  fireman,  it  cannot  be  said  that  his  injuries  arose  out  of  his 
employment,  since  the  employer  is  not  an  insurer  against  all  in- 
juries." 

Where  a  farm  employee  was  given  permission  to  go  to  a  cob- 
bler to  get  a  heavy  pair  of  shoes  before  going  to  the  woods  as  di- 
rected, and  on  the  way  stopped  at  a  saloon,  and  then  started  for  a 
post  office  and  was  killed  by  an  automobile,  it  was  held  that  his 
death  was  not  due  lo  an  accident  arising  out  and  in  the  course  of 
his  employment,  as  he  was  outside  of  the  course  of  his  employ- 
ment at  the  time  of  the  accident.5? 

An  employee  on  vacation  under  full  pay  and  required  to  fur- 
nish a  substitute  is  not  entitled  to  compensation  under  the  Feder- 
al Act  for  injuries  received  while  on  vacation." 

§  281.  Accidents  to  Employees  Under  Contract  But  Before 
Beginning  Work,  Before  Actual  Hiring  and  After  Discharge.— 
An  extra  switchman  reported  for  work  and  was  informed  that 
there  would  be  no  work  for  that  day.  He  climbed  on  a  moving 
freight  train  for  his  own  convenience  in  going  home,  and  was 

52.  Roth    v.  Adirondack  Co.,  383  N.  Y.  S.    717,  6  W.    C.    L.  J.  557; 
In  re  Warren  W.  Loney,  3rd"  A.  R.  U.  S.  C.  C.  168. 

53.  Continental  Casualty  Co.  v.  Indus.  Comm.,  —  Cal.  App.  — ,  (1920), 
190  Pac.  849.  6  W.  C.  L.  J.  434;     Hutno  v.  Lehigh  Coal  and   Navigation 
Co..  —  Pa.  — ,  (1921).  113  Atl.  68. 

54.  White  v.  Eastern  Mfg.  Co.,  —  Me.   — .    (1921),    112  Atl.  841. 

55.  Gisner  v.  Dunlop,  181  N.  Y.  S.  789,  —  App.  Div.  — ,  (1920).  6  W. 
C.  L.  J.  80. 

56.  In  re  Wm.  E.  Machamer,  2nd  A.  R.  U.  S.  C.  233. 

617 


§    281  WORKMEN 'S    COMPENSATION  LAW 

struck  by  a  viaduct  and  killed.  The  court  held  that  the  accident 
did  not  arise  out  of  the  employment,  his  employment  having 
ceased,  and  his  act  had  no  connection  with  his  employment  by  the 
railroad.  The  employment  was  from  day  to  day,  and  in  coming 
to  the  place  in  the  morning  he  was  seeking  to  establish  the  rela- 
tion of  employer  and  employee,  and  even  if  we  assume  that  the 
relation  did  exist,  it  was  terminated  as  soon  as  he  was  informed 
that  there  was  no  work  that  day.52 

An  employee  was  laid  off  because  of  ill  health  and  told  to  wait 
until  he  was  able  to  work,  and  he  returned  the  next  day  and  be- 
gan work.  Later  he  was  found  dead  at  the  place  where  his  duties 
necessitated  his  presence.  The  court  held  that  the  employee  was 
not  absolutely  discharged,  and  his  going  to  work  according  to  the 
directions  found  on  a  slip  in  his  locker,  as  was  customary,  estab- 
lished the  relation  of  employer  and  employee.  Therefore  the  ac- 
cident arose  out  of  the  employment.58 

An  engineer  reported  for  duty  in  a  state  of  intoxication,  and 
the  evidence  tended  to  show  that  he  had  been  laid  off  for  the 
night  by  the  foreman,  and  later  he  went  on  duty  and  was  killed 
while  spotting  furnaces.  The  lower  court  held  that  the  contract 
of  employment  had  ceased  and  reversed  an  award  of  compensa- 
tion. The  appellate  court  reversed  the  court  of  common  pleas  on 
the  ground  that  the  issue  of  the  alleged  discharge  had  been  found 
against  the  employer.59 

A  laborer,  who  seeking  employment,  visited  defendant's  office 
and  was  directed  to  go  to  defendant's  logging  camp,  on  a  logging 
train,  and  was  injured  on  the  way.  It  was  held  that  he  was  not 
an  employee  at  the  time  of  the  accident.60 

A  laborer  applied  for  employment  in  the  evening  and  was  in- 
formed that  there  was  no  work,  but  was  given,  at  his  request, 

57.  Michigan    Central  R.  Co.  v.  Industrial   Comm.,  290   111.   503,    125 
N.  E.  278,  5  W.  C.  L.  J.  189. 

58.  Chicago  Cleaning  Co.  v.  Indus.  Bd.   of  111.,  283  111.  177,  118  N.  E. 
989,  16  N.    C.  C.  A.  928. 

59.  Dainty  v.  Jones  &  Laughlin  Steel  Co.,  263   Pa.  109,   106  Atl.  194, 
(1919),  18   N.  C.  C.  A.  1036;     Harvey  v.  Gironda,  111.    Ind.  Bd.,    (1915), 
13  N.  C.  C.  A.  496. 

60.  Susznik  v.  Alger  Logging  Co.,  76  Oregon   1S9,  147  Pac.  922. 

618 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   281 

lodging  and  a  meal  slip  entitling  him  to  supper  and  breakfast, 
and  was  told  to  report  in  the  morning  to  see  if  there  was  any 
chance  for  employment.  He  did  not  report  according  to  instruc- 
tions but  slept  until  noon.  While  going  for  dinner  he  was  struck 
by  a  train  and  injured.  In  reversing  an  award  the  appellate 
court. held  that  he  was  not  in  the  employment  of  defendant  at  the 
time  of  the  injury,  and  therefore  the  accident  could  not  have 
arisen  out  of  the  employment.81 

Where  a  seaman  was  drowned  after  being  discharged  for  in- 
toxication, the  court  held  that  he  was  under  the  protection  of  the 
act  for  a  sufficient  length  of  time  to  enable  him  to  leave  the  boat. 
But  in  the  absence  of  any  evidence  to  establish  that  was  drowned 
while  leaving,  it  could  not  base  an  award  upon  mere  conjecture. 
If  the  drowning  occurred  after  deceased  had  reached  the  pier  he 
w;is  no  longer  in  the  employment  of  the  master,  and  not  entitled 
to  the  protection  of  the  act.82 

An  extra  gang  trackman  was  employed  by  a  railroad  company 
to  begin  work  a  day  or  two  afterwards.  As  part  of  his  compen- 
sation he  received  transportation  to  the  place  of  his  employment 
and  was  to  receive  sleeping  accommodations  upon  arrival,  pend- 
ing the  beginning  of  employment.  After  arriving  at  his  destina- 
tion and  while  waiting  to  get  into  a  bunk  car,  he  was  struck  by 
a  car  of  the  company  and  killed.  "It  is  clear  that  the  deceased, 
when  injured,  was  not  in  the  employ  of  the  railroad  company.  He 
had  been  hired  to  go  to  work  at  a  time  in  the  future.  In  the 
meantime  he  was  provided  with  a  place  to  stay  in  the  bunk  house 
and  had  been  furnished  transportation  to  that  place  from  Deca- 
tur.  lie  had  no  duties  to  perform,  he  had  performed  none  and 
was  not  expected  to  perform  any  until  Saturday  or  Monday. 
What  he  had  received  in  the  way  of  transportation  and  expected 
to  receive  in  having  a  place  to  stay  until  his  employment  began 
was  a  part  of  his  compensation,  but  the  fact  that  he  had  received 

61.  Brassard  v.  Delaware  &  H.  Co..  186  App.  Dlv.  647.    175    N.  Y.  S. 
?59.  (1919).  18  N.  C.  C.  A.  1037;  In  re  Tucker.  I.  C.  1914.  13  N.  C.  C. 
A.   491. 

62.  In  re  Whalen,  186  N.  Y.  App.  Div.  190.  173  N.  Y.  S.  856.  (1919). 
18  N.  C.  C.  A.  1037. 

619 


§  281  WORKMEN'S  COMPENSATION  LAW 

this  compensation  was  no  evidence  that  he  was  in  the  employ  of 
the  railroad  company,  in  view  of  the  terms  of  the  contract  that 
he  was  not  to  go  to  work  until  some  time  in  the  future."63 

The  claimant  had  been  in  the  employ  of  the  appellant  for  about 
8  months.  Upon  appearing  for  work  a  little  late  one  morning  the 
superintendent  told  him  he  need  not  work.  He  excused  him  not 
for  being  late  but  because  he  felt  that  he  had  been  drinking  and 
was  unfit  for  work.  He  started  to  leave  the  subway  and  tripped 
and  fell,  sustaining  injuries.  "The  appeal  proceeds  upon  the 
theory  that  he  was  not  a  regular  employee,  but  was  there  asking 
for  work,  which  was  refused,  and  that  he  was  not,  therefore,  in- 
jured within  the  course  of  his  employment.  This  contention  over- 
looks the  fact  that  he  had  been  employed  almost  continuously  for 
8  months  and  that  there  was  not  a  separate  employment  from  day 
to  day.  The  only  thing  tending  to  show  a  daily  employment  is 
that  he  was  paid  by  the  day,  but  his  wages  were  payable  weekly. 
Concededly,  he  was  expected  to  report  for  work  that  morning, 
and  did  report,  and  was  told  that  he  was  not  wanted.  He  was, 
therefore,  a  regular  employee,  and  was  there  in  the  performance 
of  his  duty  as  such,  and  is  entitled  to  the  benefit  of  the  act.  The 
award  should  be  affirmed."64 

A  carpenter  started  to  work  on  a  church  in  the  course  of  con- 
struction without  being  hired  by  the  person  in  charge,  but  in  the 
hope  that  he  .would  be  employed.  He  was  injured  before  any 
ratification  of  his  conditional  permission  to  work  and  before  any 
actual  hiring.  It  was  held  that  he  was  not  entitled  to  the  protec- 
tion of  the  act.65 

An  employee  was  injured  while  preparing  his  personal  tools, 
which  he  intended  to  use  in  work  which  was  to  begin  in  the  fu- 
ture. He  was  under  a  contract  of  employment  at  the  time  of  the 
injury,  but  his  term  of  employment  was  not  to  begin  until  a  fu- 

63.  Bloomington,  Decatur  &  Champaign  R.   Co.  v.  Indus.  Bd.,  276  111 
239,  114  N.  E.  517,  13  N.  C.   C.  A.  490. 

64.  Kiernan  v.    Priestedt  Underpinning  Co.,  171  N.    Y.  App.  Div.  539. 
157  N.  Y.  Supp.  900,  13  N.  C.  C.  A.  497. 

65.  Steiman  v.  Sofard,  2  Cal.  Ind.   Ace.    Com.  944   (1915). 


620 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    282 

ture  date,  therefore  the  accident  did  not  arise  in  the  course  of  tin- 
employment.06 

Where  an  employee  is  injured  while  seeking  employment,  or 
after  discharge,  providing  a  reasonable  time  is  allowed  for  him 
to  leave  the  premises,  and  while  under  contract  of  employment 
but  before  commencement  of  work,  the  general  rule  is  that  the 
accident  does  not  arise  out  of  and  in  the  course  of  the  employ- 
ment.67 

§  282.  The  Employee's  or  Another's  Wilful  Misconduct. — In 
General. — Some  acts  provide  that  compensation  shall  not  be  paid 
when  the  disabling  injury  is  due  to  the  employee's  serious  and 
wilful  misconduct.68 

The  decisions  on  these  provisions  will  throw  light  on  the  inter- 
pretation of  the  term  "wilful  misconduct"  where  that  term  is 
used  alone,  as  is  true  of  most  of  the  acts.  In  fact  the  two  terms 
have  been  considered  by  some  of  the  courts  to  have  the  same  mean- 
ing. " 

It  has  been  held  that  the  word  "wilful"  imports  that  the  con- 
duct was  deliberate  and  not  merely  a  thoughtless  act  on  the  spur 
of  the  moment  or  an  act  showing  a  lack  of  judgment;70  that  it  is 
the  intentional  doing  of  something  either  with  the  knowledge  that 

66.  In  re  Luenil,  Ohio  Ind.  Com..  (1915),  13  N.  C.  C.  A.  491. 

67.  Dickerson  v.  Bornstein,  173  S.  W.  773,  144,  Ky.  19;    Greenburg  v. 
Atwood,  38   N.    J.  L.  J.  54,  13  N.    C.    C.  A.  495;    Oanley  v.  Employers 
Liab.  Assur.  Corp.,  Ltd.,  2   Mass.  Workn.  C.  C.  159,    (1913),  13    N.  C.  C. 
A.   1916A    (note)    243;    Farmer's   Grain   and   Supply    Co.    of    Minden    v. 
N.  C.  C.  A.  492;    Hutcheson  v.  Frankfort  General  Ins.  Co.,  Mass.  \V.  C.  C., 
(1915),  13   N.    C.  C.  A.  493;    Moork  v.    Howard,    1  Cal.  I.  A.  C.  D.  475, 
(1914),  13  N.  C.  C.  A.  493;    Spencer  v.  Dowd.  1  Cal.   I.  A.  C.  46,  (1914), 
IS  N.  C.    C.   A.  494;     Booth  v.  Burnett,    2    Cal.  I.  A.  C.  162,   (1915),  13 
N.  C.  C.  A.  495;    In  re  Boyle,  Ohio  Ind.  Comm.,  (1915),   13    N.  C.  C.  A. 
496;    In  re  Gilbert.  14  Ohio  L.  Rep.  164,   (1916).   13  N.  C.  C.  A.  497;    In 
re  Burshe,  £>hio  I.  C.   1915.  13  N.  C.  C.  A.  498;    Merritt  v.  North  Pac.  S. 
8.  Co.,  2  Cal.  I.  A.  C.  273.  12  N.  C.  C.  A.  82;    Rogers  v.  Rogers.  —  Ind. 
App.  — ,  122  N.  E.   778.  4  W.  C.  L.  J.  58. 

68.  In   re  Murphy,  224  Mass.  592.  113  N.  E.  283. 

69.  Diestelhorst  v.  Ind.  Ace    Comm..   32  Cal.  App.  771.  164  Pac.  44. 

70.  Johnson  v.  Marshall  Sons  &  Co..  (1906),  94  L.  T.  828,  8  W.  C.  C. 
10.  5  Ann.  Cas.  630;    Belknap  v.  Mervy-Elwell  Co..*l  Cal.  Ind.  Ace.  Com. 

621 


§  282  WORKMEN'S  COMPENSATION  LAW 

it  is  likely  to  result  in  serious  injury,  or  with  a  wanton  and  reek- 
less  disregard  of  its  probable  consequences  :71  that  the  deliberate, 
wilful,  premeditated  violation  of  a  rule  made  for  the  protection 
of  the  employee  himself  against  the  consequences  of  an  accident 
is  wilful  misconduct.72 

The  seriousness  contemplated  by  the  statute  must  attach  to  the 
act  in  the  doing  of  it,  and  not  merely  to  the  consequences  thereof 
as  they  actually  develop.  So,  where  a  brakeman  stood  on  the 
platform  of  a  car  in  such  a  position  that  he  would  inevitably  be 
killed  when  the  train  entered  a  tunnel,  the  court  held  that  "any 
neglect  is  a  serious  neglect  within  the  meaning  of  the  act,  which, 
in  the  view  of  reasonable  persons,  *  *  *  expose  anybody,  (includ- 
ing the  person  guilty  of  it)  to  the  risks  of  serious  injury.  *  *  * 
The  test  is  the  apprehended,  as  distinguished  from  the  actual 
consequences. '  '73 

And  where  a  workman  was  injured  while  walking  along  a  tram- 
way in  a  mine,  upon  which  he  knew  trains  were  approaching, 
where  the  injury  was  caused  by  the  rope  slipping,  and  there  was 
no  evidence  thai;  he  could  not  have  reached  a  manhole  before  the 
train  reached  him,  it  was  held  that  he  was  not  guilty  of  serious 
and  wilful  misconduct.74 

Mere  disobedience  of  orders  does  not  necessarily,  as  a  matter  of 
law,  constitute  serious  and  wilful  misconduct,  nor  does  the  phrase 
include  every  violation  of  rules.75 

(Part  1)  82;  Wallace  v.  Glenboig  Union  Fire  Clay  Co.,  (1907),  S.  C. 
(Scot)  967;  Kent  ^.  Boyne  City  Chemical  Co.,  162  N.  W.  268,  A  1  W. 
C.  L.  J.  952. 

71.  Heckles'   Case,  230  Mass.  272,  119  N.   E.  653,  2  W.  C.   L.   J.   278; 
Bersch  v.  Morris  &  Co.,  Kan.  City,  189  Pac.  934,  6  W.  C.  L.  J.  156. 

72.  Smith  v.  Munger  Laundry  Co.,   1  Cal.   Ind.  Ace.  Comm.  (Part  II) 
168;    United  States  Fidelity,   etc.  Co.  v.  Ind.  Ace.  Comm.,  174  Cal.  616, 
163  Pac.  1013. 

73.  Hill  v.  Granby  Consol.   Mines,    (1906),   12  B.  C.  118. 

74.  Rees  v.  Powell  Duffryn  Steam  Coal  Co.,    (1900),  64   7.  P.   (Eng.) 
164,  4   W.  C.  C.  17;  Glasgow    &  S.  W.  R.   Co.  v.  Laidlaw,    (1900),  2  So. 
Sess.  Gas.  5th  series  703,  37  Scot  L.  T.   503,  7  Scot  Law  Times   420. 

75.  Peru   Basket   Co.   v.  Kuntz,   (1919),   (Ind.  App.),    122  N.  E.  349; 
Great  Western  Power  Co.  v.  Pillsbury,  (1915),  170  Cal.  180,  149  Pac.  35, 
9  N.    C.  C.  A.  466;    Freeman  v.   East  Jordon  &  S.  R.  Co,,   191  Mich.  529, 

622 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    282 

Where  a  rule  has  not  been  rigidly  enforced  the  question  of  wil- 
ful misconduct  is  eliminated  from  the  case.™ 

It  has  been  stated  by  the  California  commission  that:  "It  is 
perhaps  impossible  so  to  define  'wilful  misconduct'  as  to  make 
such  definition  applicable  to  all  cases,  but  it  may  be  stated  in  a 
general  way  to  consist  in  the  'wilful  violation'  of  a  rule  or  order 
made  for  the  employee's  own  safety,  or  for  the  safety  of  others, 
such  rule  being  prescribed  by  a  power  having  authority  to  make 
such  rules,  and  enforce  with  diligence."77  In  a  Massachusetts 
case  the  court  said :  ' '  Serious  and  wilful  misconduct  is  much  more 
thaii  mere  negligence  or  even  than  gross  or  culpable  negligence. 
It  involves  conduct  of  a  quasi  criminal  nature,  the  intentional 
doing  of  something  either  with  knowledge  that  it  is  likely  to  result 
in  serious  injury  or  with  a  wanton  and  reckless  disregard  of  its 
probable  consequences."78  It  has  been  held  that  voluntary  suicide 
is  serious  and  wilful  misconduct;79  that  wilfulness  is  the  essen- 
tial element  which  must  be  established.80 

Under  the  English  act  of  1906,  serious  and  wilful  misconduct  is 
not  a  bar  to  compensation  where  the  injury  results  in  death,  or  iu 
serious  and  permanent  disablement.  Although  a  collier,  in  dis- 
obedience to  special  rules  of  the  plant,  and  against  warnings  of  a 
fireman,  went  into  dangerous  workings  of  the  mine  and  was  guilty 

158  N.  W.  204;    George  v.  Glasgow  Coal  Co.,  (1909),  A.  C.  (Eng.)   123,  2 
B.  W.  C.  C.  125;  Gray  v.  Indus.  Ace.  Comm.,  34  Cal.  App.  713,  168  Pac.  702. 

76.  Rayner  v.  Sligh  Furniture  Co.,  180  Mich.  168,  L.  R.  A.  1916A,  22, 
146  N.  W.  665,  Ann.  Cas.  1916A,  386,  4  N.  C.  C.  A.  851. 

77.  Lutz  v.    Gladding,  Me  Bean    &  Co.,  1  Cal.  Ind.  Ace.  Com.    (Part 
II)  8. 

78.  In  re  Burns,  218  Mass.  8,  105  N.  E.  601,  5  N\  C.  C.  A.  635,  Ann. 
Cas.  1916A,  787;    Great  Western  Power  Co.    v.  Pillsbury,    170   Cal.  180, 
149  Pac.  35,  9  N.    C.  C.    A.  466;     Maryland  Casualty  Co.    v.    Ind.  Ace. 
Comm.  39  Cal.  App.  229,  178  Pac.  542;    Nickerson's  case,  218  Mass.  158. 
105    N.   E.    604,   Ann.   Cas.    1916A,   790,    5  N.   C.   C.    A.   645;    Praties  v. 
Broxburn  Oil  Co..   (1906-07),  Scot.  S.  C.  581;    Haskell   &   B.  Car.  Co.  v. 
Kay,  (Ind.  App.),  119    N.  E.    811;   Indianapolis  Light  and  Heat  Co.    v. 
Fitzwater  (Ind.  App.),  121  N.  E.  126. 

79.  In  re  Von  Ette,  223  Mass.  56.  Ill  N.  E.  696. 

80.  Kraljlvich  v.  Yellow  Aster  Mining  &  Milling  Co.,  1  Cal.  Ind.  Ace. 
Com.  (Part  II)  554. 

623 


§  283  WORKMEN'S  COMPENSATION  LAW 

of  wilful  misconduct,  yet  if  he  did  so  in  an  honest  attempt  to  further 
that  which  he  was  instructed  to  effect,  his  death  which  resulted 
from  such  act  arose  out  of  the  employment,  and  his  conduct  will 
not  preclude  a  recovery. 81 

The  Nebraska  Act  defines  willful  negligence  as  (1)  a  deliberate 
act,  or  (2)  such  conduct  as  evidences  reckless  indifference  to 
safety,  or  (3)  intoxication  at  the  time  of  the  injury,  such  intoxi- 
cation being  without  the  consent,  knowledge,  or  acquiescence  of 
the  employer  or  the  employer's  agent.  The  court  construed  this 
to  mean  more  than  want  of  ordinary  care.  It  implies  a  rash  and 
careless  spirit,  not  necessarily  amounting  to  wantonness,  but  ap- 
proximating it  in  degree ;  a  willingness  to  take  a  chance.  Run- 
ning along  beside  a  rapidly  moving  train  and  suddenly  falling 
against  it  by  reason  of  slipping  or  becoming  dizzy,  does  not  show 
such  wilful  negligence  as  to  deprive  the  deceased's  dependents  of 
compensation.84 

§  283.  Acts  Not  Constituting  Willful  Misconduct. — Where  an 
employee  undertook  to  cross  a  standing  train  without  looking  to 
see  whether  it  was  about  to  start,  the  court  said :  ' '  While  it  is 
quite  clear  that  the  claimant's  injury  was  brought  about  by  his 
own  gross  negligence  we  are  of  the  opinion  that  it  cannot  be  said, 
as  a  matter  of  law,  that  he  was  guilty  of  such  intentional  and 
willful  misconduct  as  would  defeat  his  recovery.83 

Where  an  employee  was  engaged  to  do  whitewashing,  but  was 
told  not  to  work  around  the  machinery  until  the  noon  hour,  when 
it  was  stopped;  but  he  started  to  work  there  just  shortly  before 
it  stopped  and  was  injured,  the  court  said:  "His  decision  to  do 
some  whitewashing  during  this  very  interval  seems  more  like  a 

81.  Harding  v  .Brynddu  Colliery  Co.,  (1911),  2  K.  B.  747,  80  L.  J.  K. 
B.  N.  S.  1052,  105  L.  T.  N.  S.  55,  27  Times  L.  R.  500,  55  Sol.  Jo.  599, 
4  B.  W.  C.  C.  269;  Jackson  v.  Denton  Colliery  Co.,  (1914),  W.  C.  &  Ins. 
Rep.  91,  110  L.  T.  N.  559,  7  B.  W.  C.  C.  92. 

84.  Farmers  Grain  and  Supply  Co.  of  Minden  v.   Blanchard,  —  Neb. 
— ,   (1920),  178   N.  W.  257,  6    W-  C.  L.  J.  362. 

85.  Gignac  v.  Studebaker  Corp.,  186  Mich.  576,   152  N.   W.  1037,  L.  R. 
A.   1916A    (note)    243;     Farmer's   Grain   and    Supply   Co.    of   Minden    v. 
Blanchard,  —  Neb.   — ,  (1920).  178  N.    W.  257,    6  W.  C.  L.    J.    362. 

624 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   283 

sudden  thought,  than  a  willful  act.  *  *  *  The  fact  that  the 
injury  was  occasioned  by  the  employee's  disobedience  to  an  order 
is  not  decisive  against  him.  To  have  that  effect,  the  disobedience 
must  have  been  willful  *  *  *  deliberate,  not  merely  a  thoughtless 
act  on  the  spur  of  the  moment."89 

It  has  been  held  that  willful  negligence  on  the  part  of  the  work- 
man constitutes  no  defense  to  a  compensation  claim  under  some 
Compensation  Acts;87  that  misconduct  of  itself  is  not  sufficient 
to  bar  a  claim,  willfulness  being  the  essential  element,  must  be 
established;88  that  where  a  miner,  after  doing  some  "holing,''  by 
neglecting  to  put  in  the  supports,  left  a  mass  of  shale  overhang- 
ing in  a  dangerous  position,  which  was  in  violation  of  a  statutory 
regulation,  and  later  was  killed  by  the  shale  falling  upon  him,  the 
accident  could  not  be  attributed  to  serious  misconduct  ;80  that  an 
employee,  who,  impulsively  and  without  reflection,  attempts  to 
clear  sand  off  a  moving  belt,  without  stopping  it,  is  not  guilty  of 
willful  misconduct;00  that  serious  and  willful  misconduct  is 
much  more  than  mere  negligence;91  that  the  mere  doing  of  a  thing 
in  a  careless  manner,  or  in  a  wrong  way,  without  intention  to  vio- 
late a  necessary  rule  of  safety,  or  to  do  injury,  is  not  "willful 
misconduct."92 

86.  In  re  Nickerson,  218  Mass.  158,  105  N.  E.  604,  5  N.  C.  C.  A.  645; 
Bersch  v.  Morris  &  Co.,  —  Kan.  — ,  (1920),   189  Pac.  93-4,  6   W.  C.  L.   J. 
156;    In  re  Ivan  H.   Peters,  2nd   A.   R.  U.  S.  C.   C.  281. 

87.  West  Jersey   Trust  Co.  v.  Philadelphia  &    R.  Ry.    Co.,  88  N.  J. 
Law,  102,  95  Atl.  753;    Taylor  v.  Seabrook,  87  N.  J.  Law,  407,  94  Atl.  399, 
11  N.  C.  C.  A.  710;    In  re  Wilbur  M.  Peyton,  2nd  A.  R.  U.  S.  C.  C.  280, 

88.  Kraljlvich  v.  Yellow  Aster  Mining  &  Milling  Co.,  1  I.  A.  C.   Dec. 
554. 

89.  Tennant  v.  Broxburn  Oil  Co.,  Ltd.,   (1907),  S.  C.  581,  Ct.  of  Sess; 
In  re  Lee  A.  Edward,  2nd  A.  R.  U.  S.  C.  C.  286. 

90.  Swank  v.  Chanslor-Canfield  Midway  Oil  Co.,  2  Cal.   I.  A.  C.  Dec. 
330. 

91.  Great  Western -Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35; 
9  N.  C.  C.  A.  466;    Archibald   v.  Ott.,  77  W.  Va.  448   87   S.  E.  790;     Mr- 
Nicholas  v.'Dawson,  1  W.  C.  C.  86. 

92.  Nevadjic  v.  N.  W.  Iron  Co.,  154  Wis.  97,  142  N.  W.  271,  L.  R.  A. 
1916A,  366  Ann.  ('as.  1915B,  877;  Hedges  v.  City  of   Los  Angeles,  1  Cal. 
I.    A.  C.  Dec.  394;    Coelho  v.  Rideout  Co.,    2   Cal.   I.  A.    C.    Dec.   773; 
Rockford  Cabinet  Co.  v.  Indus.  Comm..  —  111.  — ,  (1920),  129  N.  E.  143, 
7  W.  C.  L.  J.  280. 

625 
W.  O.— 40 


§  283  WORKMEN'S  COMPENSATION  LAW 

It  is  not  willful  misconduct:  Where  a  night  watchman  in  the 
employ  of  a  construction  company,  knowing  that  escaping  rob- 
bers were  in  the  vicinity,  through  a  mistake  fired  on  deputy 
sheriffs  who  returned  the  fire  and  injured  him.93  Where  a  deliv- 
ery boy,  riding  a  bicycle,  caught  on  the  rear  end  of  a  motor 
truck,  which  turned  suddenly,  causing  him  to  be  thrown  to  the 
pavement  and  injured  him.94  Where  an  employee  removed  a 
sliver  from -his  finger  with  a  pocket  knife,  after  warning  of  dan- 
ger of  infection,  even  though  infection  developed  in  the  finger, 
unless  it  could  be  shown  that  the  knife  was  the  means  of  intro- 
ducing the  infection.95  Where  the  deceased  was  violating  a  city 
ordinance  he  was  merely  guilty  of  negligence.96  Where  the  usual 
means  for  washing  up  failed  one  evening,  and  the  servant  went 
to  another  department  to  heat  water,  where  he  was  injured.97 
Where  the  employee  lost  his  eye  partly  by  reason  of  the  fact  that 
he  did  not  care  for  it  properly  after  the  accident.98  Where  a 
female  teacher  shoved  aside  a  458-pound  desk  to  get  a  necessary 
book  from  a  case,  and  injured  her  spine.99  Where  a  minor  had 
been  instructed  not  to  oil  certain  machinery  while  in  motion, 
but  did  so  thoughtlessly  after  the  power  had  been  shut  off  and 
the  machine  was  moving  of  its  own  momentum.1  Where  a  deck 
hand  was  last  seen  leaning  against  a  post  near  the  edge  of  a 
barge  apparently  asleep  and  was  drowned  by  falling  off.2  Where 
a  miner,  while  temporarily  waiting  for  another  assignment, 

93.  In  re  Harbroe,  223  Mass.  139,  111  N.  E.  709. 

94.  Beaudry  v.  Watkins,  191  Mich.  445,  158  N.  W.  16,  L.  R.  A.  1916F, 
576,   15  W.  C.  C.  A.   152. 

95.  Blain  v.  McKinsey,   1  Cal.  I.  A.  C.  Dec.  641. 

96.  Alexander  v.  Ind,  Bd.,  281  111.  201,  117  N.  E.  1040,  1   W.  C.  L.  J. 
313,    15  N.  C.  C.   A.  167. 

97.  In  re  Ayers,  64  Ind.  App.  — ,   118   N.  E.  386,  1   W.  C.  L.  J.    559, 
17  N.  C.  C.   A.    378. 

98.  Riley   v.  Mason  Motor  Co.,  199  Mich.  233,  165  N.   W.    745,  1  W. 
C.  L.  J.  406. 

99.  Elk  Grove  Union  High  School  Dist.  v.  Ind.  Ace.  Com.,  34  Cal.  App. 
589,  168  Pac.  392,  1   W.   C.  L.  J.  143,  15  N.    C.  C   A.   148. 

1.  Diestelhorst  v.   Ind.  Ace.   Com.,   32    Cal.    App.   771,    164   Pac.   44, 
15  N.  C.  C.  A.   149,  161. 

2.  Rideout  v.  Pillsbury,  173  Cal.  132.  159  Pac.  435,  12  N.  C.  C.  A.  1032 
626 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   283 

rested  in  the  shade  of  an  ore  bin,  which  collapsed  and  killed 
him.3  Where  an  inexperienced  employee  entered  a  wine  vat  to 
clean  it,  and  failed  to  test  it  for  suffocating  atmosphere.4  Where 
a  workman  stood  on  a  machine  when  the  hoods  were  being  re- 
moved, when  he  might  have  stood  on  the  ground.8  Where  an  in- 
jured workman  stated  in  response  to  a  question  of  his  physician 
that  he  was  not  an  alcoholic,  when  he  was  addicted  somewhat  to 
its  use,  he  not  understanding  that  his  answer  would  affect  the 
treatment  given.6  Driving  an  automobile  at  a  speed  of  35  to  15 
miles,  in  the  dark,  over  a  fairly  good  and  straight  road,  by  a 
driver  familiar  with  it,  in  a  heavy,  powerful  car,  equipped  with 
strong  lights,  may  be  hazardous,  but  does  not  exceed  gross  negli- 
gence.7 

An  employee,  who  violated  a  rule,  which  required  that  no  em- 
ployee should  work  over  an  overhanging  bank  without  first  re- 
quiring it  to  be  caved  off,  was  not  guilty  of  such  misconduct  as 
to  place  him  without  the  scope  of  his  employment,  but  was  guilty 
of  misconduct  of  such  a  nature  as  would  entitle  the  employer  to 
have  the  compensation  of  such  employee  reduced  50  per  cent 
as  provided  under  the  Colorado  act  for  the  violation  of  a  reason- 
able rule.8 

An  employee  was  killed  by  an  electric  shock,  while  drawing 
gasoline  for  use  in  cleaning  floors.  In  using  gasoline  the  employee 
violated  an  order  against  the  using  of  gasoline  for  this  purpose, 
but  the  violation  was  known  to  the  employer.  In  holding  that  the 
accident  arose  out  of  and  in  the  course  of  employment,  the  court 
said :  "  That  an  employee,  who,  in  an  honest  attempt  to  discharge 
a  duty  assigned  him,  does  an  act  incidental  thereto  not  specifically 
directed,  or  departs  from  the  usual  methods  of  performing  his 

3.  Brooklyn  Min.  Co.  v.  State  Ind  Ace.  Comm.,  172  Cal.  774,  159  Pac. 
162,  15   N.  C.  C.  A.  151. 

4.  United  States  Fidelity  etc.  Co.  v.  Ind.  Ace.  Comm.,  174  Cal.  616,  163 
Pac.  1013,  14  N.  C.  C.  A.  429, 

5.  Measick  v.  McEntire,  97  Kan.  813,  156  Pac.  740,  15  N.  C.  C.  A.  160. 

6.  Ramlow  v.  Moon  Lake  Ice  Co.,  192  Mich.  505,  158  N.  W.  1027. 

7.  Head  v.  Head  Drilling  Co..  2  Cal   I.  A.  C.  Dec.  279. 

8.  Indus.  Comm.  v.  Funk,  —  Colo.  — ,  (1920),  191  Pac.  125,  6  W.  C.  L. 
J.  436. 

627 


§  283  WORKMEN'S  COMPENSATION  LAW 

work,  does  not  thereby  necessarily  deprive  himself  or  his  depend- 
ents, of  a  right  to  compensation,  if  injured  while  so  engaged," 
that,  "an  employee  may  be  said  to  receive  an  injury  by  accident 
arising  in  the  course  of  his  employment  within  the  meaning  of  the 
Workmen's  Compensation  Act  of  this  state  when  it  occurs  within 
the  period  of  the  employment,  at  a  place  where  the  employee  may 
reasonably  be,  and  AArhile  he  is  doing  something  reasonably  connected 
with  the  discharge  of  the  duties  of  his  employment."9 

A  twenty  year  old  employee  working  at  a  press  was  not,  as  a 
matter  of  law,  guilty  of  willful  misconduct  within  the  workmen's 
compensation  act,  in  catching  at  certain  falling  or  loose  cards,  so 
that  his  hand  was  caught,  though  he  had  been  warned  against  the 
danger  of  so  doing.    The    court,  in  holding  that  the  employee  was 
not  guilty  of  willful  misconduct,  said  :    "The  doctrine  that  an  un- 
premeditated and  implusive  act  in  violation  of  orders  may  not  be 
willful  misconduct  finds  some  support  in  the  authorities  but  usually 
non-age  is  an  element  of  the  decision  in  which  such  doctrine  has 
been  upheld.     It  seems  to  us,  however,  that  the  age  of  the  person 
injured  does  not  necessarily  make  a  material  difference.    The  tend- 
ency to  recover  something  falling  from  a  machine;  to  reach  for 
a  hat  blown  off  the  head  by  a  sudden  gust  of  wind;  to  apply  the 
brakes  to  a  'skidding'  automobile: — in  short    to    perform    acts  of 
many  sorts  upon  the  impulse  of  the  moment,  is  not  the  failing  of 
youth  alone.     The  true  tests  to  be  applied  have  reference  to  tluj 
nature  of  the  work  being  performed  and  the  circumstances  of  each 
particular  case.    This  court  has  been  at  pains  more  than  once  to 
define  'willful  misconduct.'  Perhaps  the  best  definition  (and.  in- 
cidentally, the  one  cited  by  both  parties  to  this  controversy)  is  the 
one  found  in  the  opinion  in  Great  Western  Power  v.  Industrial 
Accident  Commission,  170  Cal.  180,  at  page  189,  149  Pac.  35,  40. 
The  court  used  this  language:  'willful  misconduct  means  some- 
thing more  than  negligence.     It  does  not  include  every  violation 
or  disregard  of  a  rule.     Casey  v.  Humphries,  (1913),  6  B.  W.  C. 
C.  520.    But  it  cannot  be  doubted  that  a  workman  who  violates  a 

9.     Nordyke   &   Harmon  Co.  v.  Swift,  —  Ind.  App.   — ,  123  N.   E.  449, 
(1919),  18  N.  C.  C.  A.,    1021,    4  W.    C.  L.  J.    179;     Southern  Pac.  Co.   v. 
Indus.  Ace.  Comm.,  177  Cal.  378,  170  Pac.  822,  1  W.  C.  L.  J.   740. 
628 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    283 

reasonable  rule  made  for  his  own  protection  from  serious  bodily 
injury  or  death  is  guilty  of  misconduct,  and  that  where  the  work- 
man deliberately  violates  the  rule,  with  knowledge  of  its  existence 
and  of  the  dangers  accompanying  its  volation,  he  is  guilty  of  will- 
ful misconduct.  Brooker  v.  Warner,  23  L.  T.  R.  201.'  "10 

A  young  man,  18  years  old,  was  injured  when  his  hand  was 
•aught  while  he  was  wiping  off  grease  that  was  running  down  the 
framework  of  the  drill  press  at  which  he  was  at  work.  There 
was  a  warning  sign  hanging  there  forbidding  just  such  action  as 
this  while  the  machine  was  running.  "The  vertical  shaft  at  the 
time  of  the  injury  was  revolving  slowly,  and  it  was  easier  to  wip-5 
it  while  in  motion  than  when  still.  "While  applicant  was  wiping 
it  he  saw  a  stream  of  grease  running  down  the  framework  of  tlu» 
machine  from  the  upper  shaft,  and,  without  thinking  about  I  he 
consequences  likely  to  flow  from  his  act,  made  a  dive  with  liis 
cloth  at  this  stream  of  grease.  The  gearing  caught  the  cloth  and 
drew  his  hand  into  it,  resulting  in  the  loss  of  two  fingers.  It  is 
clear  that  the  sign  warning  against  wiping  the  machine  while  in 
motion  was  intended  to  cover  just  such  unforeseen  and  unlikely  in- 
juries as  this.  It  follows,  therefore,  that  if  the  warning  sign,  '  Stop 
this  Machine  before  Repairing,  Oiling,  Adjusting  or  Wiping' 
constituted  a  safety  order  and  regulation  prescribed  by  the  em- 
ployer, the  wiping  of  the  machine  by  the  employee,  with  full  knowl- 
edge of  the  existence  of  the  order,  and  of  the  consequences  likely 
to  result  from  its  violation,  constituted  willful  misconduct.  There 
is  no  question  that  applicant  knew  of  the  existence  of  this  warn- 
ing sign,  but  it  is  in  evidence  that  he  did  not  know  of  the  conse- 
quences likely  to  result  from  disobeying  it.  The  reaching  for  the 
stream  of  oil  going  down  the  frame  of  the  machine  was  in  obedi- 
ence to  an  impulse,  thoughtless  of  danger.  He  knew  better  than 
to  try  to  wipe  the  gearings  while  the  machine  wTas  in  motion,  an«l 
had  never  done  so.  Neither  the  employer's  superintendent  nor 
the  young  man  in  whose  custody  applicant  was  placed  had  t>x- 

10.  Hyman  Bros.  Box  &  Label  Co.  v.  Industrial  Ace.  Conim.  —  Cal.  — , 
(1919),  181  Pac.  Rep.  784,  4  W.  C.  L  J.  343;  North  Pac.  Steamship  Co. 
v.  Indus.  Ace.  Comm.  of  Cal.  174  Cal.  500,  163  Pac.  910,  15  N.  C.  C.  A.  153. 
A  1  W.  C.  L.  J.  170. 

629 


§  283  WORKMEN'S  COMPENSATION  LAW 

plained  to  him  the  risk  attendant  upon  such  wiping.  Therefore 
one  of  the  factors  of  willfulness  as  laid  down  by  our  Supreme  Court 
in  the  Mayfield  Case  (Great  Western  Power  Co.  v.  Pillsbury,  170 
Cal.  180,  149  Pac.  35,  1  I.  A.  C.  669),  to  wit,  'Knowledge  of  the 
consequences  likely  to  result  from  disobedience,'  was  wanting.''11 

Where  blasted  stumps  constituted  the  cheapest  fuel  to  be 
secured,  and  it  was  cutomary  to  obtain  fuel  in  such  manner,  and 
a  mine  watchman,  who  was  required  to  obtain  his  own  fuel,  had 
not  been  instructed  not  to  use  explosives,  was  killed  while  blasting 
stumps  for  fuel,  he  was  not  guilty  of  such  recklessness  as  'to 
amount  to  willful  misconduct.  The  employee's  duties  as  a  watch- 
man necessitated  his  presence,  at  all  times,  on  the  premises.  The 
place  of  his  employment  was  10,500  feet  above  sea  level.  There- 
fore ''to  protect  himself  from  undue  and  unecessary  exposure  to 
the  cold  was  a  duty  he  owed  his  master  as  well  as  himself."  Pro- 
curing fuel  was,  under  the  existing  circumstances  "arising  out  of 
and  in  the  course  of  the  employment."  Assuming  that  he  was 
guilty  of  negligence  in  using  explosives  instead  of  employing 
other  means,  still  he  would  not  be  barred  from  the  protection  of 
the  act,  for  "a  peril  which  arises  from  the  negligent  or  reckless 
manner  in  which  he  does  the  work  which  he  is  employed  to  do  may 
well,  and  in  most  cases  rightly,  be  held  to  be  a  risk  incidental  to 
the  employment."  There  was  no  specific  instructions  against  us- 
ing explosives,  therefore  the  employee  was  not  guilty  of  willful 
misconduct.  The  injury  arose  out  of  and  in  the  course  of  the  em- 
ployment.12 

Deceased  was  killed  while  investigating  an  elevator  rope,  which 
did  not  work  right.  The  evidence  tended  to  establish  that  it  was 
part  of  his  duty  to  frequently  run  the  elevator,  but  did  not  show 
that  the  condition  of  the  elevator  was  such  as  to  require  the 
services  of  an  electrician  or  a  report  to  ''elevator  people."  The 

11.  Western  Pac.  R.  Co.  v.  Indus.  Ace.  Com.  of  Cal.,  —  Cal.  — ,  (1919), 
181  Pac.  787,  4  W.  C.  L.  J.  348. 

12.  Ocean  Accident   &   Guaranty  Corporation  Ltd.  v.   Pallaro,   (1919), 
-  Colo.  — ,  180  Pac.   95,  4  W.  C.  L.  J.  15,  18  N.  C.   C.  A.  1026;    Shafter 

Estate  Co.   v.   Indus.  Ace.  Comm.  of   Cal.,  175  Cal.  522,  166  Pac.  24,  15 
N.  C.    C.    A.   150;     Messick  v.   McEntire,   97  Kas.   813,   156   Pac   740,    15 
N.   C.  C.  A.  160. 
630 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   283 

court  held  that  the  contention  of  appellant,  that,  "deceased  was 
guilty  of  willful  misconduct"  was  not  tenable,  for  it  was  the  duty 
the  employer  to  investigate,  when  the  elevator  ceased  to  operate, 
and  determine  the  extent  of  the  trouble.18 

Claimant  was  not  guilty  of  willful  misconduct  in  refusing  to 
undergo  an  operation  to  amputate  his  finger,  where  his  attending 
physician  advised  that  the  finger  could  be  saved.14 

A  janitor  was  killed  by  an  electric  shock  when  he  entered  r: 
room,  which  he  had  been  forbidden  and  warned  against  entering. 
The  board  found  that  the  accident  arose  out  of  and  in  the  course 
of  employment,  but  did  not  pass  upon  the  question  of  willful  mis- 
conduct, not  believing  it  to  be  in  issue,  because  the  defendant 
employer  failed  to  plead  it  as  a  defense,  as  provided  by  the  legis- 
lative act.  The  appellate  court  held  that  the  board  was  right  in 
not  deciding  this  issue,  as  it  was  waived  by  a  failure  to  plead  it.15 

Where  an  employee  was  killed,  while  driving  a  car  with  which 
he  was  unfamiliar,  when  he  collided  with  a  street  car,  it  was  held 
that  the  action  of  deceased  was  negligent,  bu.t  did  not  amount  to 
willful  misconduct." 

Where  certain  safety  appliances  for  use  in  drilling  steel  were 
furnished,  which  appliances  were  sufficient  to  afford  adequate  pro- 
tection, and  the  employee  chose  a  less  effective  appliance  and  was 
injured  as  a  result  thereof,  it  was  held  that  the  evidence  supported 
a  finding  that  the  choice  of  appliances  rested  in  the  discretion  of 
the  employee  and  that,  while  it  was  negligent  to  choose  the  poorer 
appliance,  still  it  could  not  be  said  that  such  action  amounted  to 
willful  misconduct.17 

13.  Rowe  v.  Leonard   Warehouses,    Inc.,    (1919),   206   Mich.   493,   173 
N.  W.  Rep.  187,  4  W.  C    L.  J.  393. 

14.  Enterprise    Fence    &   Foundry  Co.   v.   Majors,  --   Ind.   App.    — , 
121  N.  W.  6,  3   W.   C.  L.  J.  113. 

15.  Northern  Indiana  Gas  &  Electric  Co.  v.  Pietzvak,  —  Ind.  App.  — , 
1  W.  C.  L.  J.  590,  118  N.  E.  132,  15  N.  C.  C.  A.  168. 

16.  Maryland  Casualty  Co.  v.   Indus.   Ace.  Comm.,  39  Cal.  App.    229, 
178  Pac.  542.  3  W.  C.  L..    J.   577;      Merlino         Conn.    <~»Marrles   Co.,   93 
Conn.    57,   104   Atl.   396,   2   W.  C.   L.    J.   781;      Baltimore   Car  Foundry 
Co.  v.  Ruzicka,  132  Md.  491,  104  Atl.  167,    2   W.   C.    L.   J.   791,   17  N.   C. 
C.  A.  379,  4  Am.  L.  R.  113. 

17.  Haskell  &  Barker  Car  Co.    v.    Kay,    --  Ind.  App.  — ,    119  N.  E. 
811,  2  W.  C.  L.  J.  466,   17  N.  C.  C.  A.  385. 

631 


§  283  WORKMEN'S  COMPENSATION  LAW 

Claimant  froze  both  his  hands  while  unloading  coal  and  informed 
his  employer  the  next  morning.  He  was  advised  to  consult  a  physi- 
cian, but  was  not  informed  that  the  phyiciaii  was  to  be  provided 
by  the  employer,  in  fact,  the  representative  of  the  employer  con- 
veyed the  opposite  idea.  Claimant  treated  his  own  hands  for  two 
weeks  and  then  received  treatment  at  the  Hartford  Hospital.  Had 
medical  treatment  been  obtained  earlier,  the  period  of  disability 
would  have  been  much  shortened.  The  court  held  that  the  claimant 
was  -not  guilty  of  such  willful  misconduct  as  would  preclude  a 
recovery.18 

A  lineman  was  killed  by  coming  in  contact  with  a  wire  charged 
with  electricity.  He  was  guilty  of  contributoiy  negligence  or  an 
infraction  of  a  rule  of  the  company,  which  rule  was  enforced  with 
little  or  no  diligence.  It  was  held  that  decedent  was  not  guilty 
of  such  willful  misconduct  as  would  defeat  a  recovery,  for  there 
must  be  shown  an  intentional  disobedience  to  a  strictly  enforced 
rule,  to  support  the  defense  of  willful  misconduct.19 

An  employee  engaged  in  painting  the  inside  of  tank  cars  was 
overcome  by  the  poisonous  fumes  arising  from  the  paint  and  died. 
Employees  were  furnished  with  respirators  and  forbidden  to  work 
inside  of  the  cars  without  a  respirator.  On  the  night  in  question 
the  respirator  would  not  work  and  deceased  went  in  without  it. 
It  was  held  that  he  was  not  guilty  of  willful  misconduct,  active, 
refusal,  reckless,  disregard  or  failure  to  perform  a  duty.  It 
amounted  to  nothing  more  than  thoughtlessness,  inattention,  heed 
lessness,  or  nonconformity  to  rules.20 

18.  Rainey    v.    Tunnel    Coal    Co.,    93    Conn.    90,    105    Atl.    333,    3    W. 
C.  L.  J.  227;    Hall  v.  J.  LaCourciere  Co.,  93  Conn.   1,  104  Atl.  348,   2   W. 
C.  L.  J.  769,  17  N.  C.   C.  A.  390. 

19.  In  re  Isaac  Bryant,  3rd  A.  R.  U.  S.  C.  C.  181;  In  re  Wm.  J.  Corkey. 
3rd  A.  R.    U.  S.  C.  C.  182;    Indianapolis  Light  &  Heat  Co.  v.  Fitzwater, 

-  Ind.  App.  — ,  121  N.  E.  126,  3  W.  C.  L.  J.  284;  Mailers  v.  Industrial  Bd. 
of  111.,  281  111.  418,  117  N.  E.  1056,  1  W.  C.  L.  J.  522;  Chicago  Rys.  Co.  v. 
Indus.  Bd.  of  111.,  276  111.  112,  114  N.  E.  534,  15  N.  C.  C.  A.  164;  Missis- 
sippi River  Power  Co.  v.  Indus.  Comm.,  289  111.  353,  124  N.  E.  Rep.  5F.2,  5 
W.  C.  L.  J.  50;  In  re  Marian  Scariano,  3rd  A.  R.  U.  S.  C.  C.  181. 

20.  General  American    Tank    Car   Corporation   v.   Borchardt,  -  -   Ind. 
App.  — ,  122  N.  E.   433,  3  W.  C.   L.  J.  700;     National  Car  Coupler  Co.  v. 
Marr,  —  Ind.  App.  — ,  (1919),  121  N.  E.  545,  3  W.  C.  L.  J.  456;  Gurski  v. 
Susquehanna  Coal  Co.,  262  Pa.    1,  104  Atl.  801,   17   N.  C.  C.  A.  943. 

632 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    283 

An  employee  was  killed  by  an  electric  shock,  received  while  li«i 
was  washing  up  after  the  days  work,  at  a  place  provided  for  that 
purpose.  It  was  held  that  recovery  could  not  be  defeated  on  the 
grounds  that  the  electric  wire  was  attached  to  the  wash  basin  for 
the  express  purpose  of  shocking  other  employees  by  a  practical 
joker,  in  the  absence  of  a  showing  that  the  injured  party  was  him- 
self a  participant  in  the  practical  joke,  otherwise  no  willful  mis 
conduct  can  be  shown  on  his  part.21 

An  employee,  whose  duties  required  him  to  carry  coal  to  tin- 
third  floor  of  a  buildinir.  was  injured  while  using  a  lift  to  get  th<- 
coal  up  to  the  third  floor.  There  was  a  notice  forbidding  any  one 
in  the  shop  to  use  the  lift,  also  a  notice  stating  that  the  lift  was 
to  be  used  for  coal,  between  8:30  a.  m.  and  9  a.  m.  Applicant, 
finding  no  operator  at  the  lift,  went  and  secured  an  engine  tender 
to  operate  it  and  was  seriously  injured  on  the  way  up.  An  award 
was  made,  the  county  judge  holding  that  the  applicant  had  done 
nothing  to  take  him  outside  the  scope  of  his  employment.  The 
court  of  appeal  held  that  the  applicant  was  doing  what  he  was 
supposed  to  do,  and  in  getting  some  one  else  to  operate  the  lift  and 
not  touching  it  himself,  he  was  doing  all  that  was  required  of 
him.22 

A  family  servant  was  burned  to  death  when  she  attempted  to 
liirht  a  fire  by  the  use  of  wood  alcohol.  The  court  hold  that  she 
was  not  guilty  of  willful  misconduct  in  disobeying  the  orders  a- 
gainst  using  a  forbidden  nn-ans  of  starting  the  fire,  saying:  "We 
must  conclude  that  it  arose  out  of  and  in  the  course  of  the  employ- 
ment unless  the  disobedience  of  orders  prevents  that  conclusion. 
The  disobedience  of  orders  in  this  case  was  a  disobedience  of  orders 
as  to  the  way  in  which  the  work  should  be  done.  The  work  itself  was 
the  very  work  decedent  was  <>x|>rct--.l  to  do.  It  was  done  at  the 
very  place  where  it  was  meant  to  be  done. ' ' 23 

21.  Hollenbach  Co.   v.    Hollenbach,    181   Ky.   262,   204   S.    W.    152,   16 
N.    C.    C.  A.  879,  2    W.  C.  L.    J.   492. 

22.  Marshall  v.   Joseph  Rodgers  &    Sons,  Ltd.,  (1918),  W.  C.    &    Ins. 
Rep.  39,    17  N.  C.  C.   A.  381. 

23.  Kolaszynski  v.  Kile,  91  N.  J.  L.  37.  102  All.  5,  15  N.  C.  C.  A.  160; 
Macechko  v.  Bowen  Mfg.  Co.,  179  N.  Y.  A.  Dlv.  573,  166  N.  Y.  S.  822.   13 
N.  C.  C.  A.  163;    Zoladtz  v.  Detroit  Auto  Specialty  Co.,  (Mich.),    (1919;, 
172  N.  W.  549,  4  W.  C.  L.  J.  259. 

633 


§  283  WORKMEN'S  COMPENSATION  LAW 

A  carpenter  met  with  an  accident  because  he  built  a  scaffold 
out  of  condemned  timbers.  It  was  held  that,  since  there  was  a 
conflict  in  the  evidence  as  to  whether  the  carpenter  was  aware 
of  the  condition  of  the  timbers,  he  could  not  be  held  guilty  of  will- 
ful misconduct,  and  compensation  was  awarded.24 

A  fellow  employee  was  overcome  by  poisonous  gas  in  a  wine  vat, 
and  the  foreman  called  for  help  and  deceased  responded,  and  after 
rescuing  his  fellow  employee  was  himself  overcome  and  died.  In 
holding  that  deceased  was  not  guilty  of  willful  misconduct  in 
entering  the  wine  vat  contrary  to  the  commands  and  order  of  his 
superiors  pertaining  to  the  entrance  into  such  vats  before  they 
had  been  cleansed  by  water,  the  court  said:  "The  conclusion, 
when  all  the  facts  and  circumstances  in  the  case  are  considered, 
that  appellant's  superintendent  and  foreman  intended,  by  the  re- 
marks made  by  the  deceased  at  the  time  he  was  preparing  to  en- 
ter the  vat,  to  simply  warn  him  of  the  danger  of  doing  so,  and  a 
mere  protest  against  it,  and  not  in  the  sense  of  a  command  not  to 
do  so,  or  as  forbidding  the  act,  is  not  unreasonable  and' unwar- 
ranted, and  we  are  unwilling  to  disturb  the  judgment  of  the  trial 
court  for  the  reason  urged  by  appellant  under  the  assignment 
under  consideration. '  '25 

An  employee  was  killed  while  blasting  concrete  foundations  with 
dynamite.  The  employer  contended  that  deceased  was  guilty  of 
willful  misconduct  in  violating  a  city  ordinance,  by  using  li/o  and 
2  sticks  of  dyamite  instead  of  one  as  provided  in  the  ordinance. 
It  was  not  shown  that  this  violation  of  the  ordinance  was  the  proxi  - 
mate  cause  of  the  death,  and  since  there  was  no  showing  of  willful 
misconduct,  which  is  an  affirmative  defense  that  the  employer  must 
set  up,  compensation  was  awarded.26 

Where  an  accident  board  found  that  deceased  came  to  his  death 
'as  the  result  of  an  accident,  which  was  caused  by  deceased's  state 

24.  Harrison  v.  Ford,  (1915),  W.  E.  &  Ins.  Rep.    272,    15   N.  C.  C.  A. 
163. 

25.  General  Ace.  Fire    &  Life  Assur.   Corp.  Ltd.  v.  Evans,    (Tex.  Civ. 
App.),  201  S.  W.  705,  17  N.  C.   C.  A.  382,  1   W.  C.  L.  J.   1148;    Kent  v. 
Boyne  City  Chemical  Co.,  159  Mich.  671,  162  N.  W.  268,  15  N.  C.  C.  A.  165. 

26.  Rosedale   Cemetery.  Assn.  v.  Indus.  Ace.  Comni.  of  Cal.,  37  Cal. 
App.  706,  174  Pac.  351,  17  N.  C.  C.  A.  389,  2  W.  C.  L.  J.  754. 

634 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   283 

of  intoxication,  but  further  found  that  deceased  was  not  guilty  of 
willful  misconduct  in  getting  into  such  a  condition,  the  Appellate 
Court  held,  that  every  condition  of  intoxication,  even  when  volun- 
tarily entered  into,  does  not  constitute  willful  misconduct,  and 
as  there  was  sufficient  evidence  here  to  justify  the  finding  of  the 
board  their  finding  is  final.-7 

A  miner  was  killed  while  riding  in  a  tub,  a  practise  engaged  in 
for  the  amusement  of  the  employees,  but  forbidden  by  the  employ- 
er. The  Appellate  Court  held  that  since  the  practise  had  been 
going  on,  despite  the  prohibition,  the  applicant  should  be  allowed 
to  show  that  the  employer  knew  of  and  winked  at  the  practise.28 

Where  a  workman,  employed  on  a  roof  some  twenty  feet  abo^e 
the  ground,  when  the  call  for  lunch  was  made,  came  down  on  a 
rope  instead  of  using  a  ladder  provided  for  such  purpose,  it  was 
held  that  he  was  not  guilty  of  such  intentional  and  willful  mis- 
conduct as  would  defeat  a  claim  for  compensation.29 

Where  the  outcome  of  an  operation  is  not  problematical  or  at- 
tended with  unusual  risk,  a  willful,  unreasonable  refusal  on  the 
part  of  the  injured  employee  will  suspend  the  liability  of  the  em- 
ployer during  the  time  such  wilful  refusal  continues.  If  the  in- 
jured employee  absolutely  refuses  to  submit  to  a  reasonable  oper- 
ation the  continued  disability  will  be  attributed  to  his  willful  mis- 
conduct and  not  to  the  injury.30 

27.  Nekoosa-Edwards  Paper  Co.  v.  Industrial  Comm.  of  Wis.,  154  Wis. 
105,  141  N.  W.  1013,  L.  R.  A.  1916A,  348,  3  N.  C.  C.  A.  661;    Hahneman 
Hospital  v.  Indus.  Bd.,  282  111.  316,  118  N.  E.  767,  1  W.  C.  L.  J.  754. 

28.  Waddell  v.  Cqltness  Iron  Co.,  (1913)  W,  C.  &  Ins.  Rep.  42,  (1912). 
2  Sc.  L.  T.  301,  4   N.  C.  C.   A.  887;   Tomlinson  v.  Garratts  Ltd.,  (1913), 
W.  C.  &  Ins.  Rep.  416,  4  N.  C.  C.  A.  887;    Casey  v.  Humphries,   (1913), 
W.  C.  &  Ins.  Rep.  485,  4  N.  C.  C.  A.  881;   Sesser  Coal  Co.  v.  Indus.  Comm., 

-  111.  — ,  (1921),  129  N.  E.  536. 

29.  Clem  v.  Chalmers  Motor  Co.,  178  Mich.   340,  144  N.  W.   848,  4  N. 
C.  C.  A.  876  L.  R.  A.  (1916),  A  352;  Chicago  Rys.  Co.  v.  Indus.  Bd..  277 
111.  512,  115  N.   E.  647. 

30.  Krlcinovlch  v.  American  Car.  Co..  192   Mich.  687,  159  N.  W.  362. 
15   N.  C.  C.  A.  79;    Lesh  v.  111.  Steel  Co..  163,  Wis.  124,  157  N.  W.  539. 
15  N.  C.  C.  A.  80;    Marshall  v.  Ransome  Concrete  Co.,  33  Cal.  App.  782, 
166  Pac.  846.  15  N.  C.  C.  A.  83;    Bruce  v.  Taylor  A  Maliskey.  192  Mich. 
34,  14  N.  C.  C.  A.  145,  158  N.  W.  153;    Hall  v.  I.  LaCourciere  Co.,  104  Atl. 
348,  93  Conn.  1,  2  W.  C.  L.  J.  769.  17  N.  C.  C.  A.  390;    Walsh  v.  Locke  & 
Co.,  (1914),  W.  C.  &  Ins.  Rep.  98.  6  N.  C.  C.  A.  675. 

635 


§  283  WORKMEN'S  COMPENSATION  LAW 

"The  deceased,  as  a  laborer,  was  obliged  to  pass  from  one  part 
of  his  employer's  premises  to  another.  Instead  of  walking  all  the 
way,  as  indeed  he  might  have  done,  he  undertook  to  ride  upon  his 
employer's  truck  going  the  same  way.  In  passing  from  one  point 
to  another  upon  the  employer's  premises  he  was  doing  what  his 
employment  necessarily  called  for.  That  he  should  attempt  to 
ride  when  the  opportunity  offered,  was  not  a  departure  from  his 
employer's  business.  It  is  not  found,  nor  is  there  any  presump- 
tion, that  any  danger  was  attendant  upon  such  riding.  Such  at- 
tempt to  ride  was,  as  matter  of  common  experience,  an  ordinary 
and  to  be  expected  incident  of  his  employment.  He  was  doing 
what  his  employment  called  for,  not  necessarily  the  riding,  but 
the  moving  from  place  to  place.  Upon  the  finding,  the  act  of  the 
decedent  was  not  done  in  violation  of  any  orders  received  by  him, 
and  it  was  manifestly  in  furtherance  of  the  performances  of  his 
duties.  Had  the  deceased  slipped  and  been  injured  while  walking 
from  one  place  of  work  to  another  on  his  employer's  premises  in 
the  course  of  his  work,  it  would  hardly  be  claimed  that  the  injury 
did  not  arise  out  of  the  employment.  What  difference  did  it  make 
that  he  slipped  while  attempting  to  get  on  the  truck  for  the  same 
purpose?'  Furthermore  as  long  as  he  was  violating  no  specific, 
enforced  rule  he  was  not  guilty  of  willful  misconduct."31 

Where  it  was  contended  that  claimant  had  no  right  under  any 
circumstances  to  board  a  moving  train  and  therefore  that  his  in- 
jury did  not  arise  out  of  the  employment,  the  appellate  court  held 
that  where  the  Industrial  Board  found  that  there  was  sufficient 
evidence  to  support  a  finding  that  the  employee  was  not  guilty  of 
willful  misconduct  in  riding  oil  the  foot-board  in  the  rear  of  an  en- 
gine, the  appellate  court  would  not  disturb  such  a  finding.32 

Where  smoking  was  forbidden  but  the  carrying  of  matches  was 
not  forbidden  an  employee  injured,  as  a  result  of  the  matches 

31.  Fiarenzo  v.    Richards   &   Co.    et  al.,  93   Conn  581,  107    Atl.  Rep. 
563,  4   W.  C.  L.  J.  599. 

32.  Decatur   Railway   &    Light   Co.    v.  Indus.    Bd.  of    111.,  276    HI.    472, 
114  N.   E.  915,  14  N.    C.  C.   A.  139, 

636 


ACCIDENT  ARISlNd  o(  T  (»F  coiKSK  OP  EMPLOYMENT.        §   284 

setting  on  fire  his  oil  soaked  clothing,  cannot  be  said  as  a  matter 
of  law  to  be  without  the  protection  of  the  Illinois  Act:38 

The  use  of  a  freight  elevator  in  leaving  work  by  a  female  em- 
ployee did  not  ainmmt  to  willful  misconduct,  but  in  using  it  she 
placed  herself  without  the  scope  of  her  employment  so  the  injury 
did  not  arise  out  of  the  employment.3* 

Where  a  driver  of  a  truck  and  deceased,  employees  of  a  team- 
ster, sent  to  haul  goods  to  a  station  after  loading  boxes,  which  were 
on  a  platform,  used  an  elevator  to  move  goods  to  a  top  floor,  they 
did  not  depart  from  the  scope  of  their  employment,  and  riding  on 
the  elevator  with  the  boxes  did  not  amount  to  a  diliberate  and 
reckless  indifference  to  danger  which  would  bar  a  recovery.34" 

§  284.  Acts  Constituting  Willful  Misconduct. — Injuries  sus- 
tained in  an  automobile  accident  by  an  employee,  who  had  been 
strictly  forbidden  to  use  the  automobile  in  the  carrying  out  of  his 
duties,  did  not  arise  out  of  the  employment.35 

Where  a  coal  miner  violated  an  enforced  rule  of  the  company  in 
advancing  to  where  a  shot  had  missed  lire,  before  the  stipulated 
time  had  elapsed,  as  provided  for  in  such  cases,  it  was  held  that  he 
was  guilty  of  such  misconduct  as  would  preclude  a  recovery.3" 

Where  a  boy  in  a  mine  was  knocked  from  a  truck  upon  which 
\ve  was  riding,  a  practice  which  was  strictly  forbidden,  as  the  boy 
well  knew,  the  court  held  that  the  boy  was  guilty  of  wilful  miscon- 
duct. 3T 

Where  a  chauffeur  was  killed  in  a  fight  which  he  began  with 
another  chauffeur  to  see  who  would  load  bricks  first,  it  was  held 

33.  Steel  Sales  Corp.  v.   Indus.    Comm.,  —  111.   — ,   (1920),    127  N.   ;•:. 
698,  6  W.   C.  L.  J.  303. 

34.  Dulac  v.  Dumbarton  Woolen  Mills,  —  Me.  — ,   (1921),  112  All.  710. 
34a.    Colbourn  v.  Nichols.  109  Atl.  882,  —  Del.  Sup.  Ct.  — ,  (1920),  6  W. 

C.  L.  J.  140. 

35.  Reimers  v.  Proctor  Publishing  Co.,  85  N.  J.  L.  441,  89  Atl.  931.  4 
N.  C.  C.  A.  738;    In  Re  Geo.  Walters,  2nd  A.  R.  U.  S.  C.  C.  281;    In  Re 
Henry  Young,  2nd  A.  R.  U.  S.  C.  C.  283. 

36.  M'Kenna  v.  Niddrie  v.  Benhr  Coal  Co.,  Ltd.,  (1915).  W.  C.  *  Ins. 
Rep.  505,  (1915).  2  Sc.  L.  T.  234,  15  N.  C.  C.  A.  166. 

37.  Madew  v.  Chatterley    Whitfleld  Collieries,  Ltd..    (1917),  2  K.   B. 
742,  15  N.  C.  C.  A.  166. 

637 


§  284  WORKMEN'S  COMPENSATION  LAW 

that  he  was  guilty  of  wilful  misconduct  of  a  nature  to  preclude  re- 
covery, when  he  engaged  in  an  undertaking  which  was  destined  to 
bring  about  the  injury  or  death  of  himself  or  another,  within  the 
meaning  of  the  exception  in  Section  10  of  the  New  York  Act. 3S 

A  machinist's  helper  omitted  to  wear  goggles  while  at  danger- 
ous work,  merely  because  he  disliked  the  goggles,  which  was  con- 
trary to  rules  and  specific  instructions.  It  was  held  that  the  ac- 
tion of  the  employee  on  this  occasion  amounted  to  wilful  miscon- 
duct. 39 

A  foreman  entered  a  transformer  room  and  was  electrocuted. 
He  was  cautioned,  by  signs,  not  to  enter  this  room.  His  duties  did 
not  require  his  presence  in  the  room,  and  he  was  conscious  of  the 
danger.  In  holding  that  the  wilful  misconduct  of  the  employee 
precluded  a  recovery,  the  court  said:  "There  is  no  evidence  in 
this  record  which  fairly  tends  to  prove  that  the  accident  arose  out 
of  and  in  the  course  of  the  employment  of  the  deceased.  The 
transformer  room  in  the  plant  of  the  plaintiff  in  error  was  a  place 
of  great  danger.  Realizing  this,  plaintiff  in  error  properly  took 
every  precaution  to  exclude  the  public  and  all  of  its  employees 
except  those  whose  duties  required  them  to  enter  or  pass  through 
the  room.  There  was  thus  created  within  the  plant  a  zone  which 
the  deceased  was  forbidden  to  enter.  In  disobedience  of  the  rules 
of  plaintiff  in  error  he  entered  this  zone,  and  the  accident  which 
resulted  in  injury  to  him  cannot  be  said  to  have  arisen  out  of  and 
in  the  course  of  his  employment."  40 

An  employee  was  injured  while  using  his  hand  to  clear  away 
sand  from  the  top  of  a  machine,  instead  of  using  a  scraper  provid- 
ed for  that  purpose,  because  he  could  make  more  money  each  week 
if  he  did  the  work  by  hand  instead  of  using  the  scraper.  It  was 
held  that  since  he  had  been  specifically  instructed  to  use  the 

38.  Stillwagon  v.  Callan  Bros.,  183  App.  Div.  141,  170  N.  Y.  S.  677,  2 
W.  C.  L.  J.  379. 

39.  McAdoo  v.  Indus.  Ace.  Comm.,   (Gal.),  181  Pac.  400,  4  W.  C.  L.  J. 
476;    Pac.  Coast  Casualty  Co.  v.  Pillsbury,  31  Cal.  App.  701,  162  Pac.  1040, 
14  N.  C.  C.  A.  135.    . 

40.  Northern  Illinois  Light  &  Traction  Co.  v.  Industrial  Board  of  111., 
279  111.  565,  117  N.  E.  95,  15  N.  C.  C.  A.  158. 

638 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    284 

scraper,  which  was  safe,  the  applicant's  conduct  was  of  such  a 
deliberate  character  as  to  preclude  recovery.41 

An  experienced  laundryman,  while  operating  a  wringing  ma- 
chine, removed  a  guard  to  save  time.  He  knew  it  was  provided 
for  his  safety.  He  was  held  to  be  guilty  of  wilful  misconduct,  and 
could  not  recover  for  resulting  injuries,  the  removal  of  the  guard 
being  intentional,  deliberate  and  willful,  because  done  for  a  definite 


11 


purpose. 

Where  a  railroad  engineer  sustained  injuries  in  a  collision,  which 
was  brought  about  by  his  own  violation  of  rules  of  the  company, 
promulgated  for  the  government  of  his  conduct,  he  cannot  recover 
because  such  violation  amounts  to  wilful  misconduct  on  the  part  of 
the  injured  party. 43 

A  night  watchman  was  killed  when  he  fell  down  a  chute.  The 
evidence  tended  to  establish  that  decedent  procured  a  chair  and  sat 
down  at  the  entrance  to  the  chute,  when  he  dozed  off  to  sleep  and 
lost  his  balance,  falling  down  the  chute.  It  was  not  shown  that 
he  was  allowed  to  abandon  his  duties  for  this  purpose.  The  court 
held  that,  while  the  rule  pertaining  to  wilful  misconduct  was  inap- 
plicable, still  the  act  of  decedent  was  not  incident  to  his  employ- 
ment, was  not  authorized  or  induced  by  his  employer  in  connection 
with  his  employment,  and  therefore  did  not  arise  out  of  his  em- 
ployment. 44 

An  employee  was  killed  when  he  attempted  to  leave  an  elevator 
while  it  was  in  motion.  Deceased  and  the  elevator  operator  were 
engaged  in  horseplay  at  the  time  of  the  accident.  The  court  hold 

41.  Gaunt  v.  Babcock  &  Wilcox  Ltd.,  (1918),  W.  C.  &  Ins.  Rep.  10,  17 
N.  C.  C.  A.  384. 

42.  Bay  Shore  Laundry  Co.  v.  Indus.  Ace.  Comra.  of  Cal.,  36  Cal.  App 
547,  172  Pac.  1128,  2  W.  C.  L.  J.  207,  17  N.  C.  C.  A.   387;    Wardle  v. 
Enthoven  &  Sons,  Ltd.,  (1917),  W.  C.  &  Ins.  Rep.  18,  86  L.  J.  K.  B.  309,  15 
N.  C.  C.  A.  154;    Bischoff  v.  American  Car  &  Foundry  Co.,  190  Mich.  229, 
157  N.  W.  34,  15  N.  C.  C.  A.  155;    Pac.  Coast  Casualty  Co.  v.  Pillsbury.  31 
Cal.  App.  701.  162  Pac.  1040,  15  N.  C.  C.  A.  156. 

43.  Rask   v.   Atchison,   T.   &   S.   F.  Ry.   Co.,   103   Kan.   440.   173   Pac. 
1066,  2  W.  C.  L.  J.  629;    Eugene  Dietzen  Co.  v.  Indus.  Bd.  of  111.,  279  111. 
11.  116  N.  E.  684,  14  N.  C.  C.  A.  125;    In  re  O.  Black,  3rd  A.  R.  U.  S.  C.  C. 
180. 

44.  Gifford  v.  Patterson,  222  N.  Y.  4.  117  N.  E.  946,  1  W.  C.  L.  J.  434. 

639 


§  284  WORKMEN'S  COMPENSATION  LAW 

that  decedent  was  guilty  of  wilful  negligence,  even  though  it  is 
conceded  that  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment. Therefore  applicant  was  precluded  from  recovering.45 

Where  a  statute  relieves  an  employer  from  liability  when  an  em- 
ployee willfully  refused  to  use  a  guard  or  protection  against  acci- 
dents, furnished  for  his  use  pursuant  to  a  statute  or  by  order  of 
the  State  Labor  Commissioner,  the  mere  voluntary  and  intention- 
al failure  to  use  such  appliance  does  not  necessarily  render  the 
ommission  wilful.  The  wilful  failure  contemplated  carries  with  it 
the  idea  of  premeditation,  obstinacy  and  intentional  wrong  doing. 
The  question  of  wilful  refusal  must  be  determined  by  the  indus- 
trial commission,  and  if  there  is  any  evidence  to  support  the  find- 
ing of  the  board,  it  will  not  be  disturbed.48 

An  employee  who  was  injured  while  violating  a  penal  statute, 
fixing  a  speed  limit,  is  guilty  of  "willful  misconduct"  under  the 
workman's  compensation  act.47 

The  right  to  compensation  is  cut  off  by  intoxication  only  if  tha 
intoxication  was  the  sole  cause  of  the  injury.48 

Where  a  police  officer  was  shot  by  a  person  he  attempted  to  ar- 
rest, recovery  could  not  be  had  where  the  statute  excluded  injuries 
resulting  from  the  intentional  acts  of  another.  "The  plaintiffs 
in  error,  claimants  before  the  commission,  contend,  in  effect, 
that  the  above-quoted  clause  of  section  8,  of  the  statute  of  1915, 
should  not  be  literally  construed,  but  that  the  words  'injury  in- 
tentionally inflicted  by  another'  should  be  interpreted  to  refer 
only  to  an  injury  intentionally  inflicted  by  another  for  reasons 

45.  Feda   v.    Cudahy   Packing   Co.,    166    N.   W.    190,  102   Nebr.   110,  1 
W.  C.  L.  J.  649;    Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coal  Co.,  99  Neb. 
321,  156  N.  W.  509,  L.  R.  A.  1916D,  970;    see  also,  L.  R.  A.  1916A,  p.  47, 
note  93,  and  R.  240,  note  17a. 

46.  Wick   v.    Gunn,   --   Okla.   — ,    4   Am.    L.   R.    107,   169    Pac.  1087,  1 
W.  C.  L.  J.  716,  17  N.  C.  C.  A.  377;    Great  Western  Electric  Chemical  Co. 
v.  Indus.  Ace.  Comm.,  35  Cal.  App.  450,  170  Pac.  165,  1  W.    C.   L.  J.  491, 
17  N.  C.  C.  A.  383. 

47.  Fidelity  etc.  Co.  v.  Industrial  Ace.  Comm.,  171  Cal.  728,  654  Pac. 
834,  L.  R.  A.  1916D,  903. 

48.  American  Ice  Co.  v.  Fitzhugh,  128  Md.  382,  97  Atl.  999,  Ann.  Gas. 
1917D,  33;    Roebling  Son's  Co.  v.  Indus.  Ace.  Comm.,  36  Cal.  App.  10,  171 
Pac.  987,  2  W.  C.  L.  J.  38. 

640 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   284 

personal  to  the  assailant,  and  not  to  relate  to,  or  include,  any  .In- 
jury which  although  inflicted  intentionally  by  a  third  person,  was 
one  caused  by  the  employment,  or  arose  as  the  result  of  a  peril 
incident  to  the  employment  as  in  the  instant  case.  However  much 
the  construction  contended  for  would  result  in  harmonizing  section 
8  with  the  general  purpose  6f  the  Workmen's  Compensation  Act, 
nevertheless  the  contention  cannot  be  sustained.  The  clause  and 
phrase  in  question  is  clear  and  explicit,  and  must  be  enforced  ac- 
cording to  its  plain  meaning.  As  said  in  Hause  v.  Rose,  6  Colo.  26 : 
'We  cannot,  as  a  court,  supply  omissions,  nor  make  law  to  fit  an 
exceptional  case.  *  *  *  The  statute,  being  explicit,  does  not 
admit  of  interpretation  beyond  its  express  letter,  and  must  be  HJ- 
iniiiistored  as  we  find  it.'  "49 

Section  6b  of  the  California  Workmen's  Compensation  Act  au- 
thorizes increased  compensation  when  the  employer  is  guilty  of 
"serious  misconduct."  In  defining  this  term  the  supreme  court 
of  California  said:  "Serious  misconduct"  of  an  employer  must 
be  taken  to  mean  conduct  which  the  employer  either  knew  or 
ought  to  have  known,  if  he  had  turned  his  mind  to  the  matter,  to 
be  conduct  likely  to  jeopardize  the  safety  of  his  employees.  Jt 
seems  clear  that  according  to  this  test,  the  commission  was  amply 
warranted  in  finding  that  the  maintenance  of  the  improperly  pro 
tected  shafting  immediately  over  and  in  close  proximity  to,  the 
conveyor  belt  was  such  serious  misconduct."  It  was  further  held 
that  the  word  "officer"  as  used  in  that  section  means  one  invest- 
ed with  general  conduct  and  control  in  a  particular  place  of  busi- 
ness and  was  not  used  in  the  technical  sense  as  one  who  is  elected 
or  whose  office  is  provided  for  by  the  articles  of  incorporation  or 
by  laws.80 

Where  an  employee  departed  from  the  scope  of  his  employment 
in  violation  of  orders  and  as  a  direct  result  thereof  was  accidental- 
ly crushed  to  death,  it  was  held  that  this  death  was  not  caused  by 
an  injury  arising  out  of  and  in  the  course  of  the  employment." 

49.  Helburg  v.  Town  of  Louisville,  (1919),  (Colo.),  180  Pac.  761,  4  W. 
C.  L.  J.  152. 

50.  E.  Clemens  Horst  Co.  v.  Indus.  A.  C.  of  Calif.,  —  Cal.  — ,  193  Pac. 
105.  7  W.  C.  L.  J.  3. 

51.  West  Side  Coal  A  Mining  Co.  v.  Indus.  Comm.,  —  III.  — .  (1920), 
126  N.  E.  218,  5  W.  C.  L.  J.  686. 

641 
W.  C.— 41 


§•  285  WORKMEN'S  COMPENSATION  LAW 

§  285.  Sportive  Acts. — Girls  employed  in  a  factory  were  in 
the  habit  of  amusing  themselves,  during  the  lunch  period,  by  rid- 
ing on  trucks  in  the  factory,  with  the  permission  of  the  foreman, 
but  contrary  to  instructions  of  the  employer.  "While  thus  engag- 
ed, applicant  fell  from  the  truck,  injuring  her  knee  and  ankle.  It 
was  held  that  since  this  play  had  become  a  settled  custom,  with  the 
knowledge  and  express  approval  of  the  forman  in  charge,  her  in- 
jury might  be  regarded  as  having  arisen  out  of  her  employment/3 

An  employee  was  injured  when  he  came  in  contact  with  an 
electric  wire,  which  had  been  fastened  to  a  knob  of  a  washroom 
door,  through  which  he  was  compelled  to  pass  to  reach  the  wash- 
room at  the  close  of  the  day's  work;  ''It  was  shown  that  plain- 
tiff's foreman,  the  man  who  directed  his  work,  was  one  of  the  per- 
petrators of  the  mischief  which  injured  the  plaintiff.  This  fore- 
man knew  that  this  particular  prank  had  become  a  custom  on 
the  employer's  premises.  Defendant  contends  that  this  person 
was  not  a  foreman,  but  the  great  weight  of  the  evidence  is  to  the 
contrary.  It  is  true  that  this  foreman  had  no  general  authority, 
but  he  was  the  person  whom  plaintiff  had  to  obey  while  in  defend- 
ant's employment."  Compensation  was  allowed.54 

A  fellow  employee  either  innocently  or  maliciously,  placed  ::i 
air  hose  against  claimant's  body.  The  hose  slipped  down  against 
claimants  rectum.  At  first  the  hose  was  dead,  but  another  em- 
ployee turned  on  the  air.  As  a  result  claimant's  rectum  was  rup- 
tured for  a  distance  of  five  inches,  necessitating  an  operation.  In 
reversing  an  award  for  compensation,  the  Supreme  Court  held 
that,  while  the  accident  arose  in  the  course  of  the  employment,  it 
did  not  arise  out  of  it,  the  court  saying  that  the  Workman's 
Compensation  Act  covered  industrial  accidents  only,  and  that  it 

53.  Thomas  v.  Proctor  and  Gamble  Mfg.  Co.,  104  Kan.  432,  179  Pac. 
372,  (1919),  18  N.  C.  C.  A.  1044,  3  W.  C.  L.  J.  712. 

54.  White  v.  Kansas  City  Stockyards  Co.,  104  Kan.  90,  177  Pac.  522, 
(1919),  18  N.  C.  C.  A.  1044,  3  W.  C.  L.  J.  476;    Hollenbach  Co.  v.  Hollen- 
bach,  181  Ky.  262,  204  S.  W.  152,  16  N.  C.  C.  A.  879,  2  W.  C.  L.  J.  492. 
For  facts  of  last  case  see  page  633  ante. 

642 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   285 

could  not  be  said  that  sportive  acts  are  industrial  accidents  arising 
out  of  the  employment.88 

An  employee  was  injured  while  standing  in  line  to  receive  iijs 
pay,  when  the  men  in  the  line  began  pushing  forward  and  back- 
wards, causing  applicant  to  slip  and  fall  upon  a  concrete  floor 
The  court  held  that  the  accident  arose  out  of  and  in  the  course  of 
the  employment.50 

Claimant  lost  the  vision  of  his  eye  as  a  result  of  being  struck  by 
a  missile  thrown  by  a  fellow  employee  in  horseplay.  This  practise 
had  been  going  on  for  SOUK-  time,  but  claimant  had  never  partici- 
pated in  it.  and  was  known,  or  by  the  exercise  of  ordinary  care 
could  have  been  known  to  the  employer.  Affirming  an  award  in 
favor  of  claimant,  the  court  said :  "The  rule  is  well  enough  settled 
that  where  workmen  step  aside  from  their  employment  and  engage 
in  horseplay  or  practical  joking,  or  so  engage  while  continuing 
their  work  and  accidental  injury  results,  and  in  general  where  one 
in  sport  or  mischief  does  some  act  resulting  in  in  jury  to  a  fellow 
worker,  the  injury  is  not  one  arising  out  of  the  employment  with- 
in the  nieaiiinir  of  the  compensation  Acts.  *  *  Here  we 
conceive  the  situation  to  be  different.  Filas  was  exposed  by  his 

employ nt  to  the  risks  of  injury  from  the  throwing  of  sash  pins 

in  sport  and  mischief.     He  did  not   himself  engage  in  the  sport. 
His  employer  did  not  stop  it.    The  risk  continued.     The  accident 
was  the  natural  result  of  the  missile-throwing  proclivities  of  som 
of  Filas'  fellow  workers  and  was  a  risk  of  the  work  as  it  was  con- 
ducted."57 

55.  Tarpper  v.  Weston  Mott  Co.,  200  Mich.  275,  166  N.  W.  857,  16  N. 
C.  C.  A.  923,  1  W.  C.  L.  J.  1040;    Federal  Rubber  Mfg.  Co.  v.  Havolic,  162 
Wis.  341,  156  N.  W.  143,  L.  R.  A.  1916D,  968,  12  N.  C.  C.  A.  795;    Furniss 
v.  Gartside,  3  B.  W.  C.  C.  411;    Cole  v.  Evans,  4  B.  W.  C.  C.  138;    Ballarde 
Adm'x  v.  Louisville  &  N.  R.  Co.,  128  Ky.  826,  16  L.  R.  A.  (N.  S.)  1052,  110 
S.    W.  296,  13  N.    C.   C.  A.    664;  Payne  v.  Indus.  Comm.,  —  111    — ,  129 
N.  E.  122,  (1920),  7   W.   C.   L.  J.   276. 

56.  Pekin  Cooperage  Co.  v.  Indus.  Bd.  of  111.,  277  111.  53,  115  N.  E.  128, 
16  N.  C.  C.  A.  635;    Markell  v.  Daniel  Green  Felt  Shoe  Co.,  221  N.  Y.  493, 
116  N.  E.  1060,  15  N.  C.  C.  A.  285. 

57.  State  ex  rel.  Johnson  Sash  &  Door  Co.  v.  Dist.  Court  of  Hennepin 
County,  140  Minn.  73,  167  N.  W.  283.  16  N.  C.  C.  A.  921,  2  W.  C.  L.  J. 
95. 

643 


§  285  WORKMEN'S  COMPENSATION  LAW 

A  mortar  mixer  sustained  an  injury  to  his  eye,  by  being  struck 
with  a  lump  of  mortar  from  above.  There  was  evidence  tending 
to  establish  that  the  mortar  was  thrown  by  an  employee  from  the 
upper  scaffold  in  horseplay,  and  that  this  particular  employee 
was  in  the  habit  of  indulging  in  horseplay  to  the  knowledge  of  the 
employer.  The  court  said:  "Where  a  workman,  known  by  his 
master  to  be  in  the  habit  of  indulging  in  dangerous  play  with  his 
fellow  workmen,  is  retained  in  his  master's  employ,  the  danger  of 
injury  from  such  play  becomes  an  incident  of  the  employment  of 
the  other  workmen,  and  injury  to  any  of  the  other  workmen,  while 
performing  regular  work,  caused  by  such  play,  comes  within  the 
provisions  of  the  workmen's  compensation  act."58 

Aji  employee  was  electrocuted  as  the  result  of  a  practical  joke 
of  a  fellow  employee.  This  practise  of  horseplay  was  not  known 
nor  assented  to  by  the  employer.  The  court  said  on  affirming  an 
award:  "Here  the  deceased  in  the  usual  course  of  his  duty  was 
required  to  work  upon  the  conduit  at  the  place  in  question  and  at 
the  time  of  his  death  was  engaged  in  the  performance  of  his  dutl^ 
and  had  not  in  the  slightest  degree  departed  therefrom,  and  while 
so  engaged  he  was  instantly  killed.  We  think  it  must  be  said 
under  such  circumstances  that  the  deceased  was  performing  a 
service  growing  out  of  and  incidental  to  his  employment.  The  ac- 
cident was  one  that  followed  as  a  natural  incident  to  the  work 
performed.  The  hazard  was  one  to  which  the  decedent  would  not 
have  been  equally  exposed  apart  from  his  employment.  The  dan- 
ger was  one  peculiar  to  his  work  and  not  common  to  the  neigh- 
borhood."09 

An  employee  fell  and  was  injured  when  he  attempted  to  dodge 
a  blow  directed  at  him  by  a  fellow  employee  in  horseplay,  and 
the  injuries  resulted  in  his  death.  The  court  said;  "An  employer 
is  not  liable,  under  the  Workmen's  Compensation  Act  (P.  L.  1911, 

58.  Stuart  v.  Kansas  City,  102  Kan.  307,  171  Pac.  913,  16  N.  C.  C.  A. 
923,  2  W.  C.  L.  J.  58. 

59.  Newport  Hydro-Carbon  Co.  v.  Indus.  Comm.  of  Wis.,  167  Wis.  630, 
167  N.  W.  749,  16  N.  C.  C.  A.  924,  2  W.  C.  L.  J.  421. 

644 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    285 

p.  134),  to  make  compensation  for  injury  to  an  employee  which 
was  the  result  of  horseplay  or  skylarking,  so  called,  whether  the 
injured  or  deceased  party  instigated  the  occurrence  or  took  DO 
part  in  it;  for,  while  an  accident,  happening  in  such  circum- 
stances may  arise  in  the  course  of,  it  cannot  be  said  to  arise  out 
of,  the  employment."60 

Where  an  employee  was  injured  when  the  assistant  Superin- 
tendent, in  sport,  turned  an  air  compressor  upon  him,  it  was  held 
that  the  accident  arose  out  of  the  employment,  since  the  habit  of 
so  using  the  air  compressor  was  known  to  the  employer  and  not 
prohibited.61 

Under  the  New  York  "Workmen's  Compensation  law  it  was  held 
that  compensation  might  be  granted  to  a  workman  whose  eye  was 
injured  by  a  fellow  servant  as  the  result  of  a  quarrel  over  their 
work,  though  the  facts  indicated  skylarking  on  the  part  of  the  em- 
ployee who  caused  the  injury.62 

Where  an  elevator  operator  left  his  post  to  scuffle  with  a  fellow 
employee  and  sustained  injuries,  it  was  held  that  the  injury  did 
not  arise  out  of  the  employment.63 

Two  employees  engaged  in  a  scuffle,  and  were  stopped  by  the 
foreman  and  ordered  back  to  work.  Subsequently  T.  struck  the 
applicant  on  the  head  with  an  ice  pick,  fracturing  his  skull  and 
rendering  him  unconscious.  Reversing  a  judgment,  holding  that 
the  accident  arose  out  of  the  employment,  the  court  said:  We 
think  that  because  of  the  skylarking  which  came  under  the  ob- 
servation of  the  president  and  superintendent  of  the  ice  com- 

60.  Hully  v.  Moosbrugger,  88  N.  J.  L.  161,  95  Atl.  1007,  12  N.  C.  C.  A. 
795,  L.  R.  A.  1916C.  Rev'g  93  Atl.  75,  8  N.  C.  C.  A.  283;    Garrett  v.  Louis- 
ville &  N.  R.  Co.,  196  Ala.  52,  71  So.  685.  13  N.  C.  C.  A.  663; ;    Terlecki  v. 
Straus,  86  N.  J.  L.  708,  92  Atl.  1087;    Schmoll  v.  Weisbrod  &  Hess  Brg. 
Co.,  89  N.  J.  L.  150,  97  Atl.  723. 

61.  In  Re  Loper,  64  Ind.  App.  — ,  116  N.  E.  324. 

62.  In  Re  Heitz,  218  N.  Y.  148,  112  N.  E.  750,  L.  R.  A.  1917A,  344. 
Affirming  order  Heitz  v.  Ruppert,  171  N.  Y.  A.  D.  961,  155  N.  Y.  S.  1112, 
14  N.  C.  C.  A.  227,  and  reargument  denied  in  218  N.  Y.  702,  113  N.  E. 
1057.    But  see  New  York  Case  at  end  of  this  section,  Leonbruno  v.  Chaplin 
Silk  Mills,  183  N.  Y.  8.  222.    Affd.  in  128  N.  E.  711. 

63.  Re  Moore,  225  Mass.  258,  114  N.  E.  204;    Burton  v.  Eggette  Coal 
Co.,  37  N.  J.  L.  271,  9  N.  C.  C.  A.  663. 

645 


§  285  WORKMEN'S  COMPENSATION  LAW 

pany's  plant,  namely,  skylarking  between  those  boys,  charged  the 
president  and  superintendent  with  contemplating  no  more  than 
that  the  same  might  occur  again,  jthat  is  skylarking  or  horseplay, 
not  that  one  boy  might  thereafter  commit  an  atrocious  assault 
upon  the  other."64 

An  employee  fell  down  a  stairs,  as  the  result  of  being  tickled  in 
the  ribs  with  a  newspaper  by  a  fellow  employee.  The  court  held 
that  an  accident  resulting  from  one  employee  playing  a  trick  upon 
another,  though  without  malice,  cannot  be  said  to  arise  out  of  the 
employment,  merely  because  such  practises  have  been  sanctioned 
by  a  custom  existing  among  such  employees.  To  entitle  the  injur- 
ed employee  to  compensation  the  injury  must  have  resulted  from 
a  risk  reasonably  incident  to  the  employment,  and,  while  it  need 
not  have  been  foreseen  or  expected,  it  must,  after  the  event  ap- 
pear to  have  flowed  from  that  source  as  a  rational  consequence. li5 

Where  a  boy  was  injured  by  being  struck  in  the  eye  by  a  chunk 
of  coal  thrown  by  a  fellow  employee  in  horseplay,  the  arbitrator 
found  that  the  accident  arose  out  of  the  employment,  because  the 
circumstances  of  th  boy's  employment  were  such  as  to  expose  him 
to  special  risk  of  stones  being  thrown  by  other  boys  engaged  in 
the  same  work  of  picking  stones  out  of  the  coal.  On  appeal  to  the 
House  of  Lords  this  judgment  was  affirmed.68 

An  employee  had  his  hand  crushed  by  a  trip-hammer,  when  he 
attempted  to  remove  a  tin  can  placed  upon  the  plate  of  the  ham- 
mer by  a  fellow  employee  in  sport.  It  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment,  it  appearing 
that  the  workman  took  no  part  in  the  sport,  but  simply  sought  to 
clear  the  die  of  the  obstruction  so  he  could  continue  work.  ' '  Had 
Knopp  been  engaged  in  joking  with  Novak  or  playing  with  him, 
and  in  carrying  on  their  pranks,  Novak  would  put  the  can  on  the 
die  and  Knopp  removed  it,  both  entering  into  the  spirit  of  the 

64.  Mountain  Ice  Co.  v.  McNeil,  91  N.  J.  L.  528,  103  All.  184;     Rev'g 
-  N.  J.  L.  — ,  103  Atl.  912,  2  W.  C.  L.  J.  532. 

65.  Coronada  Beach  Co.  v.  Pillsbury,  172  Cal.  682,  158  Pac.  212,  12  N. 
C.  C.  A.  789,  L.  R.  A.  1916F,  1164. 

66.  Clayton  v.  Hardwick  Colliery  Co.,  Ltd.,   (1916),  W.  C.  &  Ins.  Rep. 
33,  12  N.  C.  C.  A.  791;  Rev'g  (1914)  W.  C.  &  Ins.  Rep.  343,  11  N.  C.  C.  A 
237. 

646 

i 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMPLOYMENT.        §    285 

transaction  in  concert,  it  may  be  that  appellee  could  not  be  held 
to  have  received  his  injury  in  the  course  of  his  employment.  But 
in  thin  case  appellee  took  no  part  in  the  joking  himself,  but  pro- 
ceeded to  clear  the  die  of  the  obstruction  upon  it  so  that  he  could 
continue  the  work  he  was  employed  by  appellant  to  do,  and  what 
he  did  was  for  the  benefit  of  his  employer."" 

Where  section  men  were  propelling  a  hand  car  at  a  high  rate  of 
speed  for  their  own  amusement  and  thereby  caused  plaintiff  to 
lose  his  hold  on  the  handle  bars  and  to  fall  from  the  car,  sustain 
ing  injuries,  it  was  held  that  in  negligently  overspeeding  the  car 
the  men  were  engaged  in  the  performance  of  their  duty  to  the 
master,  and  were  acting  within  the  scope  of  their  employment,  and 
therefore  the  master  was  liable.  The  court  said  that  the  employ- 
ees were  charged  with  negligently  performing  the  very  act  which 
it  was  their  duty  to  perform,  that  is  to  propel  the  car,  and  that  in 
overspeeding  it  they  negligently  conducted  the  master's  busi 
ness. 88 

A  shirt  factory  employee,  while  in  one  of  two  adjoining  toilet 
rooms,  felt  something  touch  her  arm,  and  while  looking  through  a 
crack  to  see  where  the  article  came  from,  another  employee  thrust 
some  scissors  through  the  crack  into  her  right  eye.  It  was  held 
that  the  injury  resulted  solely  from  the  sportive  act  of  a  co-work- 
er, who  in  no  way  represented  the  master,  and  which  act  in  no 
way  grew  out  of  or  was  connected  with  the  employment.89 

In  a  recent  New  York  case  the  appellate  Division  held  that 
sportive  acts  are  as  much  an  element  of  risk  in  an  occupation  as 
any  other  element  that  enters  into  such  risks.  This  decision  was 
affirmed  by  the  court  of  appeals.  The  opinion  in  full  follows : 

"The  claimant  while  engaged  in  the  performance  of  his  duties, 
in  the  employer's  factory  was  struck  by  an  apple  which  one  of  his 
fellow  servants,  a  boy,  was  throwing  in  sport  at  another,  and  as  a 
consequence  lost  the  better  part  of  the  sight  on  one  eye.  lie  did 

67.  Knopp  T.  American  Car  and  Foundry  Co.,  186  111.  App.  605,  5  N. 
C.  C.  A.  798. 

68.  Soderlund  v.  Chicago,  M.  ft  St.  P.  Ry.  Co.,  102  Minn.  240,  113  N.  W. 
449,  6  N.  C.  C.  A.  801. 

69.  De  Filllpis  v.  Falkenberg.  170  App.  Div.  163,  155  N.  Y.  Supp.  761. 
12  N.  C.  C.  A.  568. 

647 


§  285  WORKMEN'S  COMPENSATION  LAW 

not  participate  in  the  horseplay,  and  had  no  knowledge  of  it  fill 
injured.  The  question  is  whether  the  accident  was  one  'arising 
out  of  and  in  the  course  of  employment/  within  the  meaning  of 
the  statute  (Workmen's  Compensation  Law,  Par.  3,  Subd.  7; 
Consol.  Laws,  c.  67). 

"(1)  That  it  arose  'in  the  course  of  employment'  is  unques- 
tioned. That  it  arose  'out  of  employment,  we  now  hold.  The 
claimant's  presence  in  a  factory  in  association  with  other  work- 
men involved  exposure  to  the  risk  of  injury  from  the  careless  acts 
of  those  about  him.  He  was  brought  by  the  conditions  of  his 
work  'within  the  zone  of  special  danger.'  Thorn  v.  Sinclair,  191.7 
A.  C.  127,  142.  Whatever  men  and  boys  will  do,  when  gathered 
together  in  such  surroundings,  at  all  events  if  it  is  something 
reasonably  to  be  expected,  was  one  of  the  perils  of  his  service.  We 
think  with  Kalisch,  J.,  in  Hully  v.  Moosbrugger,  87  N.  J.  Law,  103, 
93  At.  79.  that  it  was  'but  natural  to  expect  them  to  deport  them- 
selves as  young  men  and  boys,  replete  with  the  activities  of  life 
and  health.  For  workmen  of  that  age  or  even  of  maturer  years 
to  indulge  in  a  moment's  diversion  from  work  to  joke  with  or 
play  a  prank  upon  a  fellow  workman,  is  a  matter  of  common 
knowledge  to  every  one  who  employs  labor.'  The  claimant  was 
injured  not  merely  while  he  was  in  a  factory,  but  because  he  was 
in  a  factory,  in  touch  with  associations  and  conditions  inseparable 
from  factory  life.  The  risks  of  such  associations  and  conditions 
were  risks  of  the  employment.  Thorn  v.  Sinclair,  supra ;  Matter  of 
Redner  v.  Faber  &  Son,  223  N.  Y.  379,  119  N.  E.  842. 

"(2)  We  think  the  precedents  in  this  state,  whatever  variance 
of  view  there  may  be  in  other  jurisdictions,  sustain  our  present 
ruling.  This  case  is  not  within  the  principle  of  Matter  of  De 
Filippis  v.  Falkenberg,  219  N.  Y.  581,  114  N.  E.  1064,  and  Matter 
of  Stillwagon  v.  Callan  Brothers,  224  N.  Y.  714,  121  N.  E.  893, 
where  the  claimant,  joining  in  the  horseplay,  had  stepped  aside 
from  the  employment.  Cf.  Matter  of  Di  Salvio  v.  Meihan  Co., 
225  N.  Y.  123,  121  N.  E.  766.  This  case  is  rather  within  the  prin- 
ciple of  Matter  of  Verschleiser  v.  Stern  &  Son,  229  N.  Y.  192, 
128  N.  E.  126,  where  the  claimant,  while  engaged  in  his  work, 
was  assaulted  by  fellow  workmen  who  wished  to  tease  and  harass 
648 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    285 

him.  Cf.  Markell  v.  Green  Felt  Shoe  Co.,  221  N.  Y.  493,  116  N. 
E.  1060;  Matter  of  Heitz  y.  Ruppert,  218  N.  Y.  148,  112  N.  E. 
750,  L.  R.  A.  1917A,  344.  We  do  not  overlook  the  cases  in  other 
jurisdictions.  Hulley  v.  Moosbrugger,  supra,  was  reversed  by  the 
New  Jersey  Court  of  Errors  and  Appeals  in  88  N.  J.  Law,  161, 
95  Atl.  1007,  L.  R.  A.  1916C,  1203.  It  is  in  accord,  however,  with 
a  decision  of  the  Supreme  Court  of  Illinois.  Pekin  Cooperage  Co. 
v.  Industrial  Board,  277  111.  53,  115  N.  E.  128.  English  cases  hos- 
tile to  the  award  (Armitage  v.  Lancashire  &  Yorkshire  Ry.  Co., 
1902,  2  K.  B.  178;  Fitzgerald  v.  Clarke  &  Son,  1908,  2  K.  B.  796) 
are  inconsistent,  it  would  seem,  in  principle  with  later  rulings  of 
the  House  of  Lords  (Thorn  v.  Sinclair,  supra ;  Dennis  v.  White  & 
Co.,  1917,  A.  C.  479.  Cf.  Matter  of  Redner  v.  Faber  &  Son, 
supra,  and  Matter  of  Grieb  v.  Hammerle,  222  N.  Y.  382,  118  N.  E. 
805).  They  are  certainly  inconsistent,  with  the  broader  concep- 
tion of  employment  and  its  incidents  to  which  this  court  is  now 
committed.  Matter  of  Verschleiser  v.  Stern  &  Son,  supra.  The 
risks  of  injury  incurred  in  the  crowded  contacts  of  the  factory 
though  the  acts  of  fellow  workmen  are  not  measured  by  the  ten- 
dency of  such  acts  to  serve  the  master's  business.  Many  things 
that  have  no  such  tendency  are  done  by  workmen  every  day.  The 
test  of  liability  under  the  statute  is  not  the  master's  dereliction, 
whether  his  own  or  that  of  his  representatives  acting  within  the 
scope  of  their  authority.  The  test  of  liability  is  the  relation  of 
the  service  to  the  injury,  of  the  employment  to  the  risk."70 

Where  a  group  of  employees  had  left  their  work  and  gathered 
around  a  fire  to  warm,  a  fellow  employee  voluntarily  and  inten- 
tionally threw  a  piece  of  split  dynamite  into  the  fire.  Those  around 
the  fire  were  warned  of  the  act  and  all  ran  away  except  the  one 
injured  and  the  dynamite  exploded  and  injured  him.  It  was  held 
that  since  the  employee  was  where  he  had  a  right  to  be  the  in- 

70.  Leonbruno  v.  Champlaln  Silk  Mills,  183  N.  Y.  S.  222,  6  W.  C.  L.  J. 
483,  affd.  in  128  N.  E.  711,  7  W.  C.  L.  J.  488.  Twin  Peaks  Canning  Co.  v. 
Indus.  Comm.,  —  Utah  — ,  (1921),  196  Pac.  853;  Earlier  N.  Y.  cases  held 
to  the  contrary.  Griffin  v.  A.  Robertson  &  Son,  —  App.  DIv.  — ,  162  N.  Y. 
8.  313,  B  1  W.  C.  L.  J.  1327. 

649 


§<  286  WORKMEN'S  COMPENSATION  LAW 

jury  resulted  from  a  risk  reasonably  incident  to  the  employ- 
ment.71 

Where  a  fellow  employee  directed  a  trick  camera  toward  the 
claimant  and  a  missile  from  the  camera  hit  him  in  the  eye  and 
the  sight  of  the  eye  was  destroyed,  it  was  held  the  injury  did  not 
arise  out  of  the  employment.72 

''Where  the  nature  of  the  employment  is  such  as  to  expose  a 
worker  to  a  wrongful  act  by  another  worker,  which  may  reason- 
ably be  said  to  have  been  induced  by  the  peculiar  conditions  of 
the  employment,  the  manner  in  which  it  was  carried  on,  and  the 
appliances  required,  such  an  act  may  reasonably  be  said  to  arise 
out  of  the  employment,"  even  though  it  was  a  sportive  act  of  a 
fellow  employee.75 

Under  the  English  Workmen's  Compensation  Act  an  employee 
who  is  injured  while  skylarking  or  while  in  the  performance  of 
some  sportive  act,  cannot  recover,  since  the  injuries  sustained  are 
not  regarded  as  arising  out  of  and  in  the  course  of  the  employ- 
ment.74 

§  286.  Added  Risks  to  Peril. — Petitioner,  a  day  laborer,  while 
on  his  way  from  his  sleeping  quarters  provided  by  defendants, 
to  begin  work,  was  injured  by  his  foot  being  crushed  by  a  passing 
motor  car,  which,  the  evidence  tended  to  establish,  the  petitioner 
unsuccessfully  attempted  to  board.  Affirming  a  judgment  allow- 
ing compensation  the  court  said:  "In  this  case  there  is  evidence 
that  the  claimant  was  injured  at  the  site  of  the  camp  where  he 

71.  Willis  v.  State  Indus.  Comm.,  78  Okla.  216,  190  Pac.  92. 

72.  Fishering  v.  Pillsbury,  172  Cal.  690,  158  Pac.  215. 

73.  Socha  v.  Cudahy  Packing  Co.,  —  Neb.  — ,   (1921),  181  N.  W.  706; 
overruling  Pierce  v.  Boyer-Van  Kuran  Lbr.   Co.,  99  Neb.   321,  156  N.  W. 
509,  L.  R.  A.  1916D,  970,  in  so  far  as  it  conflicts  with  the  principles  an- 
nounced in  that  case. 

74.  Wilson  v.  Laing,  (1909),  Ct.  of  Sess,  1230,  46  Scot.  Law  Rep.  843, 
2  Scot.  L.  T.  18,  2  B.  W.  C.  C.  118,  3  N.  C.  C.  A.  283;     Wrigley  v.  Nasmyth, 
Wilson  &  Co.,  (1913),  W.  C.  &  Ins.  Rep.  145,  3  N.  C.  C.  A.  283;    see  Fitz- 
gerald v.  Clarke  &  Son,  (1908),  2  K.  B.  796,  1  B.  W.  C.  C.  197,  99  Law  Times 
Rep.  101,  77  L.  J.  K.  B.  1018;    Mullen  v.  D.  Y.  Stewart  &  Co.,  Ltd.,  (1908), 
Court  of  Session,  991,  45  Scot.  Law  Rep.  729,  1  B.  W.  C.  C.  204;  Shaw  v. 
Wigan  Coal  &  Iron  Co.,  3  B.  W.  C.  C.  81,   (1909);    Cole  v.  Evans,  Son, 
Lescher  and  Webb,  Ltd.,  4  B.  W.  C.  C.  138  (1909). 

650 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    286 

was  employed,  and  while  going  to  work  from  the  quarters  pro- 
vided by  his  employers,  along  a  road  made  for  camp  purposes,  and 
that  the  injury  was  inflicted  by  a  motor  truck  used  by  his  employers 
in  conveying  men  to  their  places  of  work  on  the  grounds  in  proc- 
ess of  being  cleared.  Whether  the  accident  occurring  under  ?iifh 
circumstances  arose  out  of  and  in  the  course  of  the  employment 
was  a  question  of  fact  which  the  appellants  were  not  entitled  to 
have  withdrawn  from  the  jury  on  the  theory  that  they  had  met 
the  burden  of  proving  the  contrary."75 

A  truck  driver  of  a  street  flushing  machine  was  injured  when  he 
fell  from  his  truck.  It  appeared  that  at  the  time  of  the  accident 
he  was  not  driving  himself,  but  was  sitting  on  the  seat  operating 
levers  which  regulated  the  flow  of  water  from  the  sprinkler.  In 
an  attempt  to  recover  a  wrench  which  was  falling,  he  lost  his 
balance  and  fell  to  the  ground.  On  appeal  it  was  contended  that 
in  allowing  another  to  drive  the  truck  a  practise  strictly  against 
the  rules  of  the  Company,  he  had  departed  from  his  employment, 
and  took  upon  himself  an  added  risk  not  within  his  employment. 
Affirming  the  award  the  court  said:  "The  employee  of  Tryon  & 
Hrain  did  not  abdicate  either  the  place  or  character  of  his  employ- 
ment. He  gave  up  part  of  his  work  to  another,  it  is  true,  as  he 
permitted  Schilling  to  run  the  truck,  but  it  was  strictly  within  the 
line  of  his  duty  to  operate  and  care  for  the  levers  which  controlled 
the  flow  of  water  from  the  tank  of  the  truck  to  the  street.  The 
same  may  be  said  of  his  attempt  to  prevent  the  wrench  from  falling 
from  the  footboard.  He  was  not  outside  the  course  of  his  employ- 
ment merely  because  he  allowed  a  stranger  to  perform  a  part  of 
his  task  while  he  was  engaged  in  the  performance  of  the  remainder 
of  it."" 

An  employee  who  was  working  on  a  gravel  car,  remained  in  the 
car  while  it  was  being  switched,  and  was  thrown  therefrom  and 
tin-  car  ran  over  his  body,  inflicting  injuries  resulting  in  his  death. 

75.  Beasman  &  Co.  v.  Butler,  (1918).  133  Md.  382,  106  All.  409,  3  W.  C. 
L.  J.  478,  18  N.  C.  C.  A.  1045. 

76.  Employer's  Liab.  Assur.  Corp.,  Ltd.  of  London,  Eng.  v.  Indus.  Ace. 
Comm.  of  Cal.,  179  Cal.  432,  177  Pac.  171,  17  N.  C.  C.  A.  942.  3  \\ 

L.  J.  407. 

651 


§  286  WORKMEN'S  COMPENSATION  LAW 

No  instructions  had  ever  been  issued  against  riding  in  the  cars 
while  they  were  being  switched.  The  court,  holding  that  the  de- 
ceased was  where  he  had  a  right  to  be,  and  that  the  injury  result- 
ing in  his  death  arose  out  of  and  in  the  course  of  his  employment, 
said:  "An  injury  occurs  in  the  course  of  the  employment,  within 
the  meaning  of  the  (Indiana)  Workmen's  Compensation  Act,  when 
it  occurs  within  the  period  of  the  employment,  at  a  place  where 
the  employee  may  reasonably  be,  and  while  he  is  reasonably  ful- 
filling the  duties  of  his  employment,  or  is  engaged  in  doing  some- 
thing incidental  to  it."  77 

Where  an  employee  was  killed  while  operating  a  metal  road 
grader  during  an  electric  storm,  it  was  held  that  deceased  had  not 
increased  his  natural  hazard  in  so  doing,  for  the  metal  road  grader 
could  not  have  had  any  perceptible  influence  upon  the  lightning.78 

Applicant  relieved  his  bowels  in  a  pail  and  took  the  pail  to  emp- 
ty it  in  a  river  and  while  doing  this  in  the  dark  he  was  injured. 
Lavatories  were  provided  for  the  use  of  the  workmen,  but  a  prac- 
tise had  sprung  up  among  the  workman  to  use  a  pail  as  applicant 
had  done,  because  time  did  not  permit  them  to  go  to  the  lavatories, 
and  further  the  lavatories  were  infested  with  parasites.  The 
court  of  Appeals  sustained  a  determination  that  the  accident  did 
not  arise  out  of  the  employment,  holding  that  the  defendant  had 
provided  facilities  for  its  workmen,  and  that  applicant  had  in- 
curred the  accident,  and  exposed  himself  to  a  risk  which  was  no 
part  of  his  employment.79 

An  employee  on  a  ship  left  his  employment  for  the  purpose  of 
going  tOv  lunch,  by  an  unusual  route,  undertaking  to  go  down  a 
scaffolding  and  ladder  on  the  outside  of  the  ship,  a  means  not  in- 
tended for  his  use  in  leaving  the  ship  at  any  time,  another  safe  way 
of  leaving  having  been  provided.  He  lost  his  hold,  fell,  and  was 
killed.  The  court,  holding  that  the  accident  did  not  arise  out  of 

77.  Granite  Sand  &  Gravel  Co.  v.  Wiloughby,  —  Ind.  App.  — ,  123  N. 
E.  194,  (1919),  4  W.  C.  L.  J.  53,  18  N.  C.  C.  A.  1045. 

78.  Wiggins  v.  Indus.  Ace.  Bd.  of  Mont.,  54  Mont.  335,  170  Pac.  9,  17 
N.  C.  C.  A.  246. 

79.  Homer  v.  Wadsworth,  Wimbledon  &  Epsom  Gas   Co.,  120  L.  T.  R. 
462,  (1919),  18  N.  C.  C.  A.  1046. 

652 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   286 

his  employment,  said:  "The  findings  of  the  commission  to  the 
effect  that  he  might  have  been  leaving  his  work  for  the  purpose  of 
getting  more  bolts -for  use  therein,  or  for  the  purpose  of  getting 
fresh  air,  seem  to  us  to  rest  upon  nothing  but  conjecture.  There 
is  no  evidence  in  the  record  to  sustain  them.  The  fresh  air,  if 
lie  needed  it,  could  have  been  obtained  in  a  perfectly  safe  place 
upon  the  deck  of  the  vessel,  and  nearer  to  the  point  of  his  im- 
mediate employment  than  the  scaffolding  from  which  he  fell,  ami 
there  seems  to  have  been  no  bolts  or  other  material  necessary  to 
his  work  to  be  obtained  at  the  place  toward  which  he  was  going. 
It  is  certain  from  this  record,  it  seems  to  us,  that  he  was,  as  has 
been  said,  simply  abandoning  his  work  before  the  hour  when  he 
was  permitted  to  leave  it.  The  award  is  annulled."80 

An  employee  was  asphyxiated  as  the  result  of  attempting  to 
heat  a  compartment  of  a  destroyer  by  burning  coal  and  coke  in 
a  bogey,  a  practice  known  to  the  defendant  and  not  objected  to. 
The  hatch  was  closed  preventing  the  escape  of  fumes.  The  county 
court  denied  compensation,  and  on  appeal  the  court  held  that, 
although  this  practice  was  not  objected  to  by  defendant,  the  tak- 
ing of  the  bogey  aboard  for  purposes  of  heating  was  in  no  way 
necessary  to  his  work,  and  deceased  had  added  peril  to  his  em- 
ployment, therefore  the  accident  did  not  arise  out  of  the  employ- 
ment.81 

Where  a  government  employee,  whose  duties  required  him  to 
receive  mail  from  incoming  trains  and  transfer  it  to  other  trains, 
climbed  aboard  the  car,  while  it  was  moving,  as  had  been  his 
custom  theretofore,  and  in  so  doing  slipped  and  fell,  sustaining 
injuries,  the  court,  in  affirming  an  award,  said:  "We  think  the 
contention  of  counsel  for  appellant  is  too  narrow.  The  mere  fact 
that  Behrend  might  have  stood  upon  the  platform  and  received 
the  mail  in  that  way  as  was  done  upon  some  occasions  did  not 
take  him  outside  of  the  scope  of  his  employment  when  he  received 

80.  Moore  £  Scott  Iron  Works  v.  Industrial  Ace.  Coxnm.  of  Cat.,  36 
Cal.  App.  682  ,172  Pac.  1114,  16  N.  C.  C.  A.  926. 

81.  Armistead    v.  number   Graving    Dock  &    Engineering    Co.,    Ltd.. 
(1918),  W.  C.  *  Ins.  Rep.  342,  18  N.  C.  C.  A.  1046. 

653 


§  286  WORKMEN'S  COMPENSATION  LAW 

it  in  a  different  way  and  in  a  way  which,  doubtless,  under  the 
testimony  was  considered  proper. '  '82 

A  steamship  employee  went  ashore  for  provisions,  and  when  re- 
turning to  the  ship  attempted  to  board  a  tram  car  while  in  mo- 
tion, and  sustained  injuries.  In  reversing  an  award,  the  court 
held  that  the  applicant  had  taken  upon  himself  an  added  risk  or 
peril  not  incident  to  his  employment,  and  therefore,  the  accident 
did  not  arise  out  of  the  employment.83 

Where  an  employee  attempted  to  catch  a  ride  on  a  train  which 
was  going  in  his  direction,  and  in  doing  so,  fell  under  the  train 
and  was  injured,  the  court,  in  holding  that  the  accident  did  not 
arise  out  of  the  employment,  said:  "We  think  it  clear  in  this 
case  that  catching  a  ride  upon  cars  being  switched  in  and  out  of 
the  planing  mill  yard  was  not  a  usual  and  ordinary  way  for  em- 
ployees of  the  planing  mill  to  go  to  and  from  the  place  of  their 
employment,  and  that  there  is  no  evidence  to  sustain  a  finding  to 
that  effect.  *  *  *  If  it  had  been  the  intent  of  the  legislature 
to  make  the  employer  liable  for  all  injuries  sustained  by  the  em- 
ployee after  he  had  completed  his  services  and  while  he  was  leav- 
ing and  still  upon  the  premises  of  the  employer,  they  would  not 
have  limited  the  employer's  liability  to  injuries  sustained  while 
going  to  and  from  his  employment  in  the  ordinary  and  usual 
way."84 

Deceased  went  to  a  floor  above  the  one  on  which  she  worked, 
having  permission  to  do  so,  and  when  returning,  the  lift,  upon 
which  she  and  three  others  were  riding,  stuck,  and  in  order  to 
get  out  through  a  door,  which  opened  automatically  and  which 
was  open  only  about  two  feet,  the  occupants  attempted  to  crawl 
out,  and  in  doing  so  deceased  was  caught  by  the  sudden  starting 
of  the  lift  and  killed.  On  appeal  the  court  held  that  the  accident 

82.  White  v.  Indus.  Comm.  of  Wis.,  167  Wis.  483,  167  N.  W.  816,  16 
N.  C.  C.  A.  927,  2  W.  C.  L.  J.  428;    Fox  v.  Rees  &  Kirby,  Ltd.,  (1916),  W.  C. 
&  Ins.  Rep.  339,  15  N.  C.  C.  A.  243. 

83.  Byrne  v.  Larrinaga  Steamship  Co.,  Ltd.,  (1918),  W.  C.  &  Ins.  Rep. 
319,  18  N.  C.  C.  A.  1047;    Lynch  v.  Neuman,  37  N.  J.  L.  J.  1.7,  9  N.  C.  C.  A. 
661;    In  Re  Alexander  Coplin,  3rd  A.  R.  U.  S.  C.  C.  176. 

84.  Foster-Latimer  Lbr.  Co.  v.  Indus.  Comm.  of  Wisconsin,  167  Wis. 
S37,  167  N.  W.  453,  16  N.  C.  C.  A.  928,  2  W.  C.  L.  J.  199.    ' 

654 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   286 

was  not  due  to  an  added  peril,  but  it  was  her  duty  to  return  to 
the  work,  and  the  fact  that  she  did  so  improperly  would  not  de- 
feat compensation.85 

An  employee,  who  was  expected  to  report  to  his  employer  be- 
fore 6  p.  m.,  arrived  at  the  station  just  as  the  last  train  for  the 
day  was  about  to  leave,  and  in  attempting  to  board  the  moving 
train  was  injured.  In  reversing  an  award  the  court  said:  "I 
am  not  satisfied  that  his  employment  did  expose  him  to  railway 
accidents  more  than  ordinary  people.  Moreover,  this  was  not  a 
railway  accident,  and,  even  assuming  that  death  due  to  a  rail- 
way collision  between  Sheffield  and  Rotherham  might  have  made 
the  employers  liable  to  pay  compensation,  wholly  different  con- 
siderations apply  to  the  present  case.  He  exposed  himself  to  an 
additional  risk  by  doing  an  unauthorized  and  illegal  act.  To  say 
that  the  act  was  done  in  his  master's  interest,  and  not  for  his 
own  pleasure,  is  not  sufficient.  There  is  not  a  particle  of  evidence 
to  show  what  he  was  doing  between  5  p.  m.,  when  the  joiners  left 
off  work,  and  5 :26  p.  m.,  when  the  train  started.  To  perform  his 
duty  towards  his  masters  he  ought  to  have  started  earlier  to  reach 
the  station  before  5:26.  I  think  he  was  not  employed  to  do  this 
illegal  act,  either  expressly  or  by  implication,  as  incidental  to  his 
employment.  The  risk  involved  in  attempting  to  get  into  a  train 
in  motion  was  not  a  risk  reasonably  incident  to  or  'arising  out 
of  his  employment."86 

Where  an  employee,  who  attempted  to  fill  a  bottle  at  a  bubble 
fountain  for  the  purpose  of  drinking  therefrom  instead  of  drink- 
ing directly  as  was  intended  by  the  employer,  and  was  injured 

85.  Gibbons  v.  British  Dyes,  Ltd.,  (1918),  W.  C.  &  Ins.  Rep.  302,  18  N. 
C.  C.  A.  1047;  Benson   v.    Bush,   104    Kan.    198,    (1919),   178   Pac.    747, 
3  W.  C.  L.  J.  629.    For  facts  in  this  case  see  page  808  post. 

86.  Jibb  v.  Chadwick,   (1915),  W.  C.  &  Ins.  Rep.  342,  15  N.  C.  C.  A. 
248;    In  Re  Fumicillo,  219  Mass.  488,  107  N.  E.  349,  15  N.  C.  C.  A.  245; 
Hadwin  v.  Shepherd,   (1915),  W.  C.  &  Ins.  Rep.  503,  15  N.  C.  C.  A.  245; 
Lancashire  ft  Yorkshire  Ry.  v.  Highley,  (1917),  W.  C.  ft  Ins.  Rep.  179; 
Rev'g,  (1916),  W.  C.  &  Ins.  Rep.  244,  85  L.  J.  K.  B.  1513,  15  N.  C.  C.  A. 
210;    Russell  v.  Murray,  Ltd.,  (1915),  W.  C.  ft  Ins.  Rep.  532;  *UforriB  T. 
Rowbothram,  (1915),  W.  C.  ft  Ins.  Rep.  67,  15  N.  C.  C.  A.  288;    Whittall  v. 
Stavely  Iron  ft  Coal  Co.,  Ltd.,  (1917),  W.  C.  &  Ins.  Rep.  202,  15  N.  C.  C.  A. 
243. 

655 


§  287  WORKMEN'S  COMPENSATION  LAW 

when  the  bottle  burst,  the  injury  did  not  arise  out  of  the  employ- 
ment, but  was  due  to  an  added  peril  imported  by  the  servant  him- 
self.87 

§  287.  Employer's  Willful  Misconduct.— Where  a  statute 
legally  permits  minors  to  be  employed,  but  not  in  the  particular 
work  to  which  they  are  assigned  at  the  time  of  the  injury,  it  is  inter- 
preted by  the  Wisconsin  Court  to  mean  that,  under  the  Wisconsin 
Act,  the  statute  does  not  restrict  minors,  permitted  to  be  employed  to 
the  precise  work  for  which  they  are  employed,  but  permits  them  to 
be  employed  to  do  any  kind  of  work.  Therefore  a  minor  legally 
permitted  to  work,  but  injured  while  doing  work  which  he  is  pro- 
hibited by  statute  from  being  engaged  to  perform,  was  within  the 
compensation  act,  and  could  not  maintain  an  action  at  common 
law,  even  though  the  employer  was  liable  to  penal  punishment  for 
violation  of  the  statute.88 

A  girl  under  16  years  of  age  was  employed  in  a  factory,  contrary 
to  the  penal  statute  in  force  in  the  state  at  the  time,  and  was  in- 
jured. In  an  action  at  common  law  for  damages,  it  was  contended 
that  the  proper  remedy  was  under  the  compensation  act.  .The 
court  held  that  the  workmen's  compensation  act  was  not  a  bar  to 
a  common  law  action  for  damages,  by  an  infant  who  was  employed 
in  violation  of  a  penal  statute,  and  that  the  further  violation  of 
a  provision  of  the  labor  law  requiring  machinery  of  every  descrip- 
tion to  be  properly  guarded  was  evidence  of  the  employer's  negli- 
gence.89 This  rule  applies  even  where  the  infant  falsely  represent- 
ed her  age.  To  hold  otherwise  would  be  to  open  the  door  to  whole- 
sale violation  of  the  statute.  The  adoption  of  such  a  rule  would 
be,  in  effect,  to  amend  the  statute  by  reading  into  it  the  word  'know- 

87.  Bolden's  Case;  In  Re  Fjsk  Rubber  Tire  Co;  In  Re  Traveler's  Ins. 
Co.,  —  Mass.  — ,  (1920),  126  N.  E.  668,  5  W.  C.  L.  J.  861. 

88.  Foth  v.  Macomber  &  Whyte  Rope  Co.,  161  Wis.  549,  11  N.  C.  C.  A. 
599,  154  N.  W.  369;  Boy'.e  v.  A.  C.  Cheney  Piano  Action  Co.,  184  N.  Y.  S. 
374,  (1920),  7  W.  C.  L.  J.  93. 

89.  Wolff  v.  Fulton  Bag  and  Cotton  Mills,  185  App.  D.  436,  173  N.  Y.  S. 
75,  3  W.  C.  L.  J.  354,  17  N.  C.  C.  A.  616;    Waterman  Lumber  Co.,  v.  Beatty, 

-  Tex.  Civ.  App.  — ,  204  S.  W.  448,  17  N.  C.  C.  A.  614;    Kruczkowski  v. 
Polonia  Pub.  Co.,  203  Mich.  213,  168  N.  W.  932,  17  N.  C.  C.  A.  6M;    Mary- 
land Car  Co.  v.  Indus.  Comm.,  —  Gal.  — ,  178  Pac.  858,  3  W.  C.  L.  J.  563. 
656 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   287 

ingly'  or  other  equivalent  expression.  In  some  jurisdictions 
reasonable  diligence  on  the  part  of  the  employer  to  ascertain  tin- 
truth  of  a  false  statement  will  defeat  the  alternative  liability.00 
A  contrary  ruling  was  made  in  an  earlier  New  York  Case  where 
a  minor  was  employed  to  operate  an  elevator,  contrary  to  the  pro- 
visions of  the  statute.  It  was  held  that  the  case  came  under  the 
Compensation  Act.91 

"The  remedy  of  compensation  afforded  by  the  Workmen's  Com- 
pensation Insurance  and  Safety  Act  is  exclusive  of  all  other  statu- 
tory or  common-law  remedies,  except  in  the  one  case  provided  by 
subdivision  'b'  of  section  12.  By  that  subdivision  it  is  provided 
that  an  injured  employee,  instead  of  presenting  to  the  commission 
his  claim  for  compensation  as  provided  by  the  act,  may,  at  his 
option,  maintain  in  the  courts  an  action  at  law  against  his  em- 
ployer  to  recover  damages  where  all  the  three  following  elements 
co-exist:  (1)  When  the  injury  is  caused  by  the  employer's  gross 
negligence  or  willful  misconduct;  (2)  when  the  act  or  failure 'to 
act  which  is  the  cause  of  the  injury  is  the  personal  act  or  failure 
to  act  on  the  part  of  the  employer  himself,  or,  if  the  employer  be 
a  corporation,  on  the  part  of  an  elective  officer  or  officers  thereof ; 
and  (3)  when  the  act  or  failure  to  act  which  is  the  cause  of  the 
injury  indicates  a  willful  disregard  of  the  life,  limb,  or  bodily 
safety  of  the  employees.  Without  undertaking  to  state  the  evi- 
dence at  length  or  to  discuss  it  at  large,  let  it  suffice  to  say  that 
unless  it  appears  that  defendent  consciously  violated  some  order 
of  the  commission  or  some  particular  safety  provisions  of  the  act 
itself,  it  was  not  guilty  of  'gross'  negligence,  simply  because  it 
failed  to  house  the  gears  with  which  plaintiff  brought  his  arm 
in  contact  when  attempting  to  replace  the  belt.  The  mere  failure 
,  to  keep  the  gears  in  a  housing,  apart  from  any  willful  disregard 
of  some  order  of  the  commission,  or  of  some  particular  safety  pro- 
visions of  the  act  itself,  does  not  evince  such  an  utter  disregard 

90.  Acklin  Stamping  Co.,  v.  Kutz,  98  Oh.  St.  61,  120  N.  E.  229.  17  N.  C. 
C.  A.  607;    Secklich  v.  Harris-Emery  Co.,  184  Iowa  1025,  169  N.  W.  325, 
17   N.  C.  C.  A.  607,  3  W.  C.  L.  J.   129;    Taglinette  v.  Sidney  Worsted 
Co.,  —  R.  I.  — ,  105  Atl.  641,  3  W.  C.  L.  J.  662.    See  page  79  ante. 

91.  Robilotto  v.  Bartholdi  Realty  Co.,  104  Misc.  419,  172  N.  Y.  Supp. 
328,  17  N.  C.  C.  A.  616. 

657 

W.  C.— 42 


§  287  WORKMEN'S  COMPENSATION  LAW 

of  consequences  as  to  suggest  some  degree  of  intent  to  cause  the 
injury,  or  to  justify  the  belief  that  there  was  a  conscious  indiffer- 
ence to  consequences.  'Willful  misconduct'  means  something  dif- 
ferent from  and  more  than  negligence,  however  gross.  The  term 
'serious  and  willful  misconduct'  is  described  by  the  Supreme  Judi- 
cial Court  of  Massachusetts  as  being  something  'much  more  than 
mere  negligence,  or  even  gross  or  culpable  negligence,'  and  as  in- 
volving 'conduct  of  a  quasi  criminal  nature,  the  intentional  doing 
of  something  either  with  the  knowledge  that  it  is  likely  to  result 
in  serious  injury  or  with  a  wanton  and  reckless  disregard  of  its 
probable  consequences.'  In  re  Burns,  218  Mass.  8,  105  N.  E.  601, 
Ann.  Gas.  1916A,  787.  The  mere  failure  to  perform  a  statutory 
duty  is  not,  alone,  willful  misconduct.  It  amounts  only  to  simple 
negligence.  To  constitute  'willful  misconduct'  there  must  be  actual 
knowledge,  or  that  which  in  the  law  is  esteemed  to  be  the  equiva- 
lent of  actual  knowledge,  of  the  peril  to  be  apprehended  from  the 
failure  to  act,  coupled  with  a  conscious  failure  to  act  to  the  end 
of  averting  injury.  Smith  v.  Central,  etc.  Ry.  Co.,  165  Ala.  407, 
51  South.  792.  Measured  by  the  foregoing  standard,  it  cannot  be 
said  that  defendant  was  guilty  of  'willful'  misconduct  merely  be- 
cause it  failed  to  house  the  gears,  unless  the  housing  of  the  gears 
was  made  a  duty  by  some  general  or  special  order  of  the  Industrial 
Accident  Commission,  or  by  the  Act  itself,  and  some  one  of  the 
defendant's  elective  officers,  with  a  willful  disregard  of  the  life, 
limb,  or  bodily  safety  of  defendant's  employees,  having  actual 
knowledge  of  the  peril  incident  to  the  unhoused  gears  or  having 
what  in  law  is  equivalent  to  such  actual  knowledge,  consciously 
failed  to  house  the  gears,  so  as  to  avert  injury."  92 

Under  the  Illinois  "Workmen's  Compensation  Act,  the  right  of 
an  employee  to  maintain  an  action  for  an  injury  depends  not  only 
upon  his  proof  that  it  was  caused  by  the  corporation  employer's 
intentional  omission  to  properly  guard  gearings,  as  required  by 
the  factory  act,  but  upon  the  allegation  and  proof,  by  the  em- 

92.     Helme  v.  Western  Milling  Co.  —  Cal.  App.  — ,  (1919),  185  Pac.  510, 
5  W.  C.  L.  J.  143;  Adams  v.  Iten  Biscuit  Co.,  —  Okla.  — ,  162  Pac.  938,  B  1 
W.  C.  L.  J.  1480.    But  for  a  contrary  holding,  see,  Clemens  Horst  Co.  v. 
Indus.  Accident  Comm.,  —  Cal.  — ,  193  Pac.  105,  7  W.  C.  L.  J.  3. 
658 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    287 

ployee,  that  such  omission  was  committed  by  the  employer's  elec- 
tive officer,  in  which  case  it  would  come  under  the  exception  to 
the  act.98 

Under  the  Massachusetts  Workmen's  Compensation  Act,  in 
proceedings  for  the  death  of  an  employee  operating  an  elevator, 
it  was  found  by  the  board  that  the  conduct  of  the  employers,  in 
permitting  the  elevator  to  be  maintained  and  operated  in  the  con- 
dition in  which  it  was  at  the  time  of  the  accident,  was  not  serious 
and  willful  misconduct,  entitling  the  employee's  representative  to 
double  compensation.  This  was  held  to  be  supported  by  the  evi- 
dence, for,  "Serious  and  willful  misconduct"  of  a  subscriber,  as 
used  in  the  act,  involving  conduct  of  a  quasi  criminal  nature,  the 
intentional  doing  of  something  either  with  the  knowledge  that  it 
is  likely  to  result  in  serious  injury,  or  with  a  wanton,  and  reck- 
less disregard  of  its  probable  consequences,  cannot  be  supported 
by  a  finding  that  the  employer  was  grossly  negligent.04 

Under  the  Ohio  Act,  an  order  made  by  the  commission  to  em- 
ployers generally,  or  to  a  particular  employer  with  reference  to 
safe  place  of  employment,  is  a  lawful  and  reasonable  require- 
ment, and  a  failure  to  comply  with  the  provisions  of  such  order, 
or  with  a  statute  or  municipal  ordinance  which  prescribes  meth- 
ods to  be  used  to  protect  the  lives,  health,  etc.,  of  employees, 
leaves  the  employer  liable  to  the  employee  injured  by  reason  of 
such  failure,  independently  of  the  compensation  act.  "Lawful 
requirement''  does  not  include  a  general  course  of  conduct,  or 
those  duties  and  obligations  of  care  and  caution,  which  rest  upon 
employers,  and  all  other  members  of  the  community,  for  the  pro- 
tection of  life,  health  and  safety.95 

Under  the  Minnesota  Act,  the  employment  of  an  apprentice 
without  a  license,  in  the  operation  of  an  elevator,  was  held  not 

93.  Von  Boeckman  v.  Corn  Products  Refln.  Co.,  274  111.  605,  113   N. 
E.  902. 

94.  Heckles   Case,  230  Mass.  272,  119  N.  E.  653,  2  W.  C.  L.  J.  278,  17 
N.  C.  C.  A.  434;    Riley  v.  Standard  Ace.  Ins.  Co.,  —  Mass.  —,116  N.  E. 
259,  A.  1  W.  C.  L.  J.  858.  • 

95.  American  Wooden  Ware  Mfg.  Co.  v.  Schorling,  96  Ohio  305,   117 
N.  E.  366,  1  W.  C.  L.  J.   106. 

659 


§  287  WORKMEN'S  COMPENSATION  LAW 

to  be  violative  of  the  statute,  where  the  evidence  did  not  show 
that  it  was  intended  that  he  should  operate  the  elevator  alone.96 

Under  the  Oregon  Act,  in  seeking*  a  recovery  in  addition  to 
payments  from  the  accident  fund,  as  provided  in  cases  of  injury 
resulting  from  "deliberate  intention"  of  the  employer,  it  must  be 
shown  that  the  injury  resulted  from  a  determination  to  injure  the 
employee,  and  negligence,  no  matter  how  gross,  of  itself  will 
not  be  sufficient  to  justify  the  recovery  of  the  additional  amount.97 

"The  plaintiff  and  other  employees  of  the  defendant  company, 
together  with  a  man  named  Fisher,  the  foreman,  having  charge 
of  the  work,  were  engaged  in  erecting  a  large  sheet-iron  tank, 
to  be  used  for  the  storage  of  chemicals.  This  tank  was  composed 
of  large  iron  plates,  which  were  lifted  in  position  by  means  of  a 
derrick  and  boom,  erected  upon  a  scaffolding  placed  within  this 
large  metal  tank.  Shortly  before  the  accident  occurred,  the  at- 
tention of  Fisher,  the  foreman,  was  several  times  directed  to  the 
fact  that  the  mast  of  the  derrick  was  leaning  two  feet,  that  one 
of  the  guy  lines  was  weak,  and  several  of  the  men  said  to  him 
that  the  mast  should  be  straightened  and  the  guy  lines  should  be 
tightened  and  replaced.  Fisher  refused  to  do  this,  and,  notwith- 
standing the  fact  that  his  attention  was  called  to  the  defects  of 
this  derrick  several  times,  and  that  a  strain  of  a  ton  load  was 
being  placed  upon  the  guy  lines  and  the  derrick,  the  foreman, 
with  an  oath,  directed  McWeeny  and  the  other  men  to  proceed 
with  the  lifting  of  the  heavy  iron  plate.  They  did  so,  and  while 
engaged  in  this  work  the  scaffolding  and  derrick  collapsed,  in- 
juring McWeeny  and  several  other  of  the  men.  The  evidence 
tends  to  show  that  the  foreman  at  the  time  of  this  unfortunate 
occurrence  was  himself  in  a  place  which  was  of  no  danger  to 
him.  From  an  examination  of  these  sections  (20-1  and  21-2)  it 
is  apparent  that,  where  an  employer  had  complied  with  the  pro- 
visions of  this  act  in  paying  the  premiums  into  the  funds  and  in 
posting  the  necessary  notices',  the  employee  in  case  of  injury,  or 
his  representative  in  case  of  death,  can  not  recover  for  negligence 

96.  Pettee  v.  Noyes,  133  Minn.  109,  157  N.  W.  995. 

97.  Jenkins  v.  Carman  Mfg.  Co.;  79   Ore.  448,   155  Pac.  703,  11   N.  C. 
0.  A.  547. 

660 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   287 

or  the  want  of  ordinary  care,  but  if  the  injury  results  from  a  will- 
ful act,  or  from  the  violation  of  a  statute  or  ordinance  or  order 
of  any  duly  authorized  officer,  which  statute,  ordinance,  or  order 
was  enacted  for  the  protection  of  the  life  or  safety  of  the  em- 
ployee, then  in  such  event  the  employee  can  either  take  the  bene- 
fits provided  under  this  act  or  sue  in  court  to  recover.  The  de- 
fendant contends  that  the  willful  act  in  contemplation  of  this 
statute  must  have  been  an  act  done  intentionally  with  a  purpose 
to  inflict  injury.  The  court  charged  at  the  trial,  in  part;  'To 
constitute  a  willful  act  in  this  case,  you  must  find  that  the  action 
of  Fisher  was  such  an  action  as  to  evince  an  utter  disregard  of 
consequences  so  as  to  inflict  the  injuries  complained  of.  In  other 
words,  the  negligent  action  was  such  recklessness  reaching  in  de- 
gree to  utter  disregard  of  consequences  which  might  probably 
follow.  In  the  action  of  Fisher  in  ordering  McWeeny  to  work  on 
this  scaffold  and  in  connection  with  this  derrick  was  done  under 
such  circumstances  as  to  evince  an  utter  disregard  for  the  safety 
of  McWeeny  and  the  other  employees  working  there  in  connec- 
tion with  him,  then  that  action  was  a  willful  act.'  If  the  con- 
tention urged  by  defendant  that  a  willful  act  had  to  be  an  act 
coupled  with  an  intention  to  injure  the  employee  were  the  correct 
construction  of  those  terms  of  the  statute,  then  the  employers 
of  laborers,  so  long  as  they  themselves  or  their  employees  did  not 
criminally  injure  their  employees,  could  incur  no  liability  no  mat- 
ter how  recklessly  or  carelessly  they  conducted  their  business 
without  any  regard  to  the  safety  of  those  employed.  Extreme 
cases  of  this  sort  will  seldom  arise.  I  can  not  believe  that  the  legis- 
lature intended  that  the  term  'willful  act'  should  be  narrowed 
down  to  mean  a  deliberate  intent  to  do  bodily  injury  and  nothing 
else.  This  compensation  act  was  passed  for  a  purpose:  its  pri- 
mary purpose  was  to  protect  the  men  engaged  in  the  various  oc- 
cupations in  Ohio.  In  my  opinion,  the  case  was  fairly  tried,  and 
the  issues  fairly  submitted,  and  the  motion  for  a  new  trial  will  be 
overruled."98 

98.     McWeeny  v.  Standard  Boiler  Plate  Co.,  210  Fed.  507,  4  N.  C'.  C.  A. 
919,  Aff.  218  Fed.  361,   134  C.  C.  A.  169. 

661 


§  287  WORKMEN'S  COMPENSATION  LAW 

Failure  to  grind  a  circular  saw,  as  required  by  the  laws  of  1909, 
page  202,  which  resulted  in  injury  to  employee,  was  held  to  be  an 
"intentional  omission,"  within  the  111.  Act.  of  1911." 

An  employee  was  caught  under  the  wheels  of  a  26-ton  crane,  and 
injured  as  the  result  of  the  crane  not  being  guarded  as  required 
by  statute.  He  sought  to  recover  15  per  cent  extra  compensation, 
in  accordance  with  a  provision  of  the  act  that,  in  case  the  employ- 
er fails  to  comply  with  the  provisions  of  any  statute  of  the  state  or 
order  of  the  industrial  commission,  and  injury  results  therefrom, 
compensation  will  be  increased  15  per  cent.  The  front  wheels  of 
the  trucks  were  not  guarded.  The  employer  sought  to  defeat  the 
claim  on  the  ground  that,  even  though  the  front  wheels  had  been 
guarded  the  employee  would  have  been  crushed  against  a  vertical 
post  4  or  5  feet  distant  or  else  would  have  been  thrown  to  the 
ground  a  distance  of  20  feet  and  probably  killed.  In  affirming  a 
judgment  allowing  the  additional  compensation,  the  court,  said: 
"An  injury  is  caused  by  the  failure  of  an  employer  to  guard  a 
machine  where  it  appears  as  a  fact  that  the  particular  injury 
from  which  the  employee  suffered  would  not  have  been  sustained 
by  the  employee  if  the  machine  had  been  guarded  as  required 
by  law,  and  the  employer  is  liable  therefor  unless  it  is  caused 
by  a  want  of  ordinary  care  on  the  part  of  the  employee 
which  is  wilful.  The  chain  of  physical  causation  is  com- 
plete, and  whether  or  not  the  failure  to  guard  is  the  proximate 
cause  of  the  injury  in  the  sense  in  which  that  term  is  used  in  the 
law  of  negligence  is  immaterial."  * 

A  finding  that  the  employer  was  not  guilty  of  such  serious  and 
wilful  misconduct  as  would  entitle  the  injured  employee  to  double 
compensation,  when  supported  by  the  evidence,  is  conclusive 
where  an  employee  sustained  a  mortal  injury  consisting  of  a  frac- 
ture of  the  spine  with  severance  of  the  spinal  cord,  due  to  the  col- 
lapse of  a  staging  which  he  and  other  employees  were  taking 

down.2 

99.     Forrest  v.  Roper  Furniture  Co.,  267  111.  331,  108  N.  B.  328. 

1.  Manitowoc  Boiler  Works  v.  Indus.  Comm.,  165  Wis.  592,  163  N.  W. 

172,  17  N.   C.   C.  A.   436. 

2.  In  re  Burns,  218  Mass.  8,  105  N.  E.  610,  5  N.  C.  C.  A.  635. 

662 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    287 

"The  negligence  of  the  subscriber  in  furnishing  for  the  use  of 
its  employees  an  elevator  so  thoroughly  out  of  repair  as  to  be  un- 
safe and  in  permitting  the  use  of  the  elevator  which  the  board 
could  find  the  superintendent  considered  was  in  a  'dangerous 
condition,'  while  abundantly  shown  by  the  evidence,  *  *  *  does 
not  rise  to  the  degree  of  serious  and  wilful  misconduct  of  a 
subscriber  or  of  any  person  regularly  intrusted  with  and  exercis- 
ing the  powers  of  superintendence,  for  which  under  section  3, 
as  amended,  the  injured  employee  shall  be  awarded  double  com- 
pensation.* *  *"3 

When  an  employee  is  injured  as  the  result  of  an  act  of  wil- 
ful misconduct  on  the  part  of  his  employer,  and  institutes  an  ac- 
tion at  law  to  recover  damages,  as  provided  for  by  the  provisions  of 
the  California  Act  in  such  cases  and  the  court  sustained  a  de- 
murrer to  the  plaintiff's  petition  and  judgment  was  rendered 
against  him,  this  does  not  amount  to  an  election  of  remedies,  a 
determination  of  which  would  bar  further  proceedings  under  the 
compensation  act.  The  judgment  only  determined  that  the  allega- 
tions of  the  complaint  failed  to  state  a  case  that  would  permit 
the  claimant  to  institute  a  cause  of  action  other  than  a  proceeding 
under  the  compensation  act  and  therefore  the  proper  tribunal 
for  the  adjudication  of  his  claim  was  the  Industrial  Accident 
Commission.4 

Where  an  employer  is  assessed  treble  damages  because  of  hiring 
a  minor  of  permit  age,  without  requiring  a  permit,  he  cannot 
avail  himself  of  the  defense  that  the  minor  willfully  misrepre- 
sented his  age.5 

In  another  California  case  the  court  said:  "Serious  miscon- 
duct" of  an  employer  must  therefore  be  taken  to  mean  conduct 
which  the  employer  either  knew  or  ought  to  have  known,  if  he 
had  turned  his  head  to  the  matter,  to  be  conduct  likely  to  jeop- 
ardize the  safety  of  his  employees.  It  seems  clear  that  according 

3.  In  re  Riley,  227  Mass.  55,  116  N.  E.  259,  17  N.  C.  C.  A.  434. 

4.  San   Francisco  Stevedoring  Co.  v.  Pillsbury,   170  Cal.  321,  9  N.  C. 
C.  A.   37,  149  Pac.  586. 

5.  Mueller  &  Son  Co.  v.  Oothard,  —  Wis.  — ,  (1920),  179  N.   W.   576. 
6  W.  C.  L.  J.  730. 

663 


§  288  WORKMEN'S  COMPENSATION  LAW 

to  this  test,  the  commission  was  amply  warranted  in  finding  that 
the  maintenance  of  the  improperly  protected  shafting,  immedi- 
ately over,  and  in  close  proximity  to  the  conveyor  belt,  was  such 
serious  misconduct."6 

Safety  orders  of  an  industrial  commission  are  not  effective  un- 
til served  upon  the  employer.  Such  safety  orders  are  not  con- 
clusively presumed  to  be  reasonable.  And  it  is  incumbent  upon  a 
servant,  suing  for  personal  injuries  caused  by  gross  negligence  of 
the  employer,  to  prove  that  the  injuries  resulted  from  conduct  of 
the  employer  which  would  amount  to  gross  negligence.  A  fail- 
ure to  comply  with  a  safety  rule  of  which  he  had  no  knowledge 
would  not,  of  itself  sustain  claimant's  contention.7 

Under  tbe  Kentucky  act  the  failure  of  an  employer  to  furnish 
safety  devices  required  by  statute  does  not  entitle  a  guardian  or 
the  injured  minor  employee  to  sue  at  common  law  for  damages  for 
this  election  applies  only  where  the  minor  is  employed  in  willful 
and  known  violation  of  law,  and  such  failure  does  not  constitute 
employment  in  violation  of  law.8 

§  288.  Injuries  Sustained  While  Performing  Acts  for  the  Per- 
sonal Convenience  or  Pleasure  of  the  Employee. — A  traveling 
saleman's  duties  and  places  to  call  during  a  particular  week  vve**e 
definitely  determined  by  his  employer,  and  he  was  furnished  with 
an  automobile  for  this  purpose.  He  departed  from  the  schedule 
mapped  out  for  him  and  visited  other  places  during  the  week  in 
order  that  he  would  be  able  to  attend  memorial  services  to  be  held 
in  this  latter  locality.  While  visiting  these  places  he  was  killed  in 
an  automobile  accident.  The  court  held  that  in  deviating  from  the 
route  mapped  out,  in  order  that  he  might  gratify  his  own  personal 
ambitions  he  took  himself  out  of  the  course  of  the  employment,  so 
that  the  accident  did  not  arise  out  of  the  employment.9 

6.  E.  Clemens  Horst  Co.  v.  Indus.    A.  C.    of  Calif.,  —  Gal.    — ,    193 
Pac.  105,  7   W.  C.   L.  J.  3. 

7.  Schmidt  v.  Pursell,  —  Cal.  App.  — ,  (1920)  190  Pac.  846,  6  W.  C.  L,. 
J.  425. 

8.  Freys  Guardian  v.  Gamble  Bros.,  —  Ky.  App.,  —  (1920),  221  S.  W. 
870,  6  W.  C.  L.  J.  171. 

9.  State   ex  rel.  Niessen  v.   District  Court   of  Ramsey  Co.,  142  Minn. 
3P.5,  172  N.  W.  133,  (1919),  18  N.  C.  C.  A.  1041,  4  W.  C.  L.  J.  109. 

664 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    288 

Where  a  street  car  conductor  stopped  his  car  in  front  of  his 
home  to  order  his  lunch,  and  was  killed  when  so  doing  by  being 
struck  by  another  car,  it  was  held  that  such  an  act  on  the  part 
of  the  conductor  was  incidental  to  his  employment,  and  that  in- 
juries received  while  so  doing  arose  out  of  and  in  the  course  of 
his  employment.10 

A  garage  employee  whose  duty  it  was  to  wash  automobiles,  was 
called  by  his  foreman  to  look  at  an  automatic  pistol  that  had  been 
taken  from  an  automobile  and  placed  in  a  desk  in  the  office  some- 
time prior.  As  the  foreman  was  passing  the  pistol  over  to  deceased 
it  was  accidentally  discharged  and  deceased  was  killed.  In  an 
action  for  compensation  the  court  held  that  since  the  men  were 
merely  gratifying  their  curiosity  concerning  the  pistol  and  were  do- 
ing nothing  to  further  the  interests  of  their  employer,  the  accident 
did  not  arise  out  of  the  employment.  The  fact  that  the  foreman  had 
authority  over  and  control  of  deceased  was,  under  the  cimim- 
stances,  immaterial." 

Claimant's  employer  owned  two  buildings,  T.  &  M.  Claimants 
duties  were  in  T.  building,  and  on  a  Sunday  when  he  was  on 
duty  as  a  watchman  at  T.  building,  he  went  over  to  M.  building, 
and  there  fell  into  an  elevator  shaft.  The  board  found  that 
claimant's  presence  in  M.  building  was  purely  voluntary  and 
aside  from  any  duties  connected  with  his  employment,  and  there- 
fore the  accident  did  not  arise  out  of  the  employment.  This  finding 
was  affirmed  on  appeal." 

Where  a  boy,  when  returning  from  a  toilet,  left  the  usual  path- 
way, and  went  a  few  feet  to  ask  the  time  from  a  fellow  employee, 
and  was  injured  by  a  bale  of  cotton,  which  was  being  rolled  from 
a  cart,  it  was  held  that  such  a  departure  was  not  one  that  would 
disentitle  him  to  compensation  for  the  injury  sustained.18 

10.  Rainford  v.  Chicago  City  Ry.  Co.,  281  111.  427,  124  N.  E.  643,  5  W. 
C.  L.  J.  60. 

11.  Culhane  v.  Economical  Garage  Co.,  188  N.  Y.  App.  D.  1,  176  N.  Y.  8. 
508,  (1919),  18  N.  C.  C.  A.  1042,  4  W.  C.  L.  J.  276 

12.  Borck    v.  Simon    J.  Murphy    Co.,  205   Mich.   472.   171   N.    \V.   470, 
(1919),  18   N.  C.  C.   A.  1042. 

13.  Corlett  v.  Lancashire   &  N.   Ry.  Co.,    120  L.  T.  R.  236,  18    N.  C. 
C.  A.  1043 ;    Conyea  v.  Canadian  Northern  Ry.  Co.,  5  Western  Wkly.  Rep. 
607,  12  N.   C.  C.  A.  897. 

665 


§  288  WORKMEN'S  COMPENSATION  LAW 

An  employee  was  injured,  and  his  hand  was  bandaged  and 
turpentine  poured  on  the  bandage  by  an  agent  of  the  employer  to 
alleviate  the  pain.  In  lighting  a  cigarette  the  bandage  became 
ignited  and  his  hand  severely  burned.  The  court  of  Appeals  af- 
firmed an  award  which  held  that  the  accident  arose  out  of  the 
employment,  because  such  acts  as  are  necessary  to  the  life,  com- 
fort and  convenience  of  a  workman  while  at  work,  though  personal 
to  himself,  and  not  acts  of  service,  were  incidental  to  the  service. 
Continuing  the  Court  said:  "Are  we  to  place  the  use  of  tobacco 
in  this  list  of  ministrations  to  the  comfort  of  the  employed?  Is 
its  use  necessarily  contemplated  in  the  course  of  such  an  employ- 
ment as  that  in  which  Duarte  was  engaged?  The  petitioner,  in 
answering  these  questions  in  the  negative,  places  great  dependence 
in  the  argument  that  tobacco  is  used  to  appease  a  selfcreated  appe- 
tite and  not  a  natural  appetite.  The  argument  does  not  appeal  to  us. 
In  an  endeavor  to  determine  what  indulgence  of  human  beings  are 
responsive  to  the  demands  of  natural,  what  to  unnatural,  appetites, 
we  should  be  carried  to  depths  of  biological  and  physiological  re- 
search. Such  labor  is  not  necessary.  We  have  the  tobacco  habit 
with  us,  and  must  deal  with  it  as  it  is.  It  will  not  do  to  say 
that  mankind  would  be  better  for  a  lack  of  the  weed,  even  if  that 
statement  be  true.  Tobacco  is  universally  recognized  to  be  a  solace 
to  him  who 'uses  it,  and  it  may  be  that  such  a  one,  unless  he  finally 
shakes  off  the  habit,  cannot  perform  the  labors  of  his  life  as  well 
without  it  as  with  it.  In  the  present  war  one  of  the  constantly 
recurring  calls  upon  the  public  of  the  world  is  for  tobacco  for  the 
comfort  of  the  participants  in  the  conflict.  Nor  are  the  books  with- 
out their  cases  to  the  substantial  effect  that  the  employer  must 
expect  the  employed  to  resort  to  the  use  of  tobacco  as  a  necessary 
adjunct  to  the  discharge  of  his  employment."  The  supreme  court 
adopted  the  opinion  of  the  court  of  Appeals,  "as  a  correct  state- 
ment of  the  facts  and  an  adequate  treatment  of  the  law  arising  on 
those  facts."14 

14.    Whiting  Mead  Commercial  Co.  v.  Indus.  Ace.  Comm.,  178  Cal.  505, 

173   Pac.    1105,   17   N.   C.   C.  A.   958,   2   W.   C.   L.   J.   746;     Dzikowska   v. 

Superior  Steel  Co.,  259   Pa.  576,  103  Atl.  351,   16  N.  C.  C.   A.  914,  2  Vv. 

0.  L.  J.  131;     Chuldzinski  v.  Standard  Oil  Co.  of  N.  Y.,  176  App.  Div. 

666 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    288 

An  employee  was  killed  as  the  result  of  an  explosion  occurring 
from  dynamite  in  rubbish,  while  the  employee  was  watching  a 
scavenger  unload  the  rubbish.  The  accident  occurred  while  the  men, 
(including  deceased)  were  waiting  to  begin  work  at  a  pier.  The 
court  held  that  this  risk  was  in  no  way  incidental  to  the  employ- 
ment. The  men  were  gratifying  their  own  curiosity,  and  therefore 
the  accident  did  notarise  out  of  the  employment.15 

Claimant  was  injured  when  she  slipped  and  fell  on  her  way 
back  upstairs,  after  setting  a  bottle  of  tea  on  the  boiler  in  the 
liaxcmcnt  upon  arrival  in  the  morning.  Affirming  an  award  in 
her  favor  the  court  said:  "If  claimant,  during  working  hours, 
had  suspended  work  to  go  to  a  cloakroom  to  change  her  clothes, 
to  the  washroom  to  wash  up  or  to  use  the  toilet,  and  while  in  such 
room  had  been  injured,  she  could,  under  the  authorities,  have  had 
an  award.  *  *  *  In  order  to  be  acting  in  the  course  of  her  employ- 
ment, therefore,  it  was  not  necessary  that  she  should  have  been 
actually  engaged  in  the  work  thereof.  It  was  sufficient  if  she  was 
performing  some  act  upon  the  premises  of  her  employer  which, 
though  directly  beneficial  to  herself,  was  an  ordinary  incident  of 
a  day  of  employment."16 

An  errand  boy  was  injured  and  later  died  as  the  result  of  an 
accident,  occurring  while  he  was  on  an  errand.  The  evidence  was 
conflicting  as  to  whether  deceased  attempted  to  board  the  moving 
train  in  connection  with  which  the  accident  occurred,  for  his  own 
personal  convenience  or  that  he  was  otherwise  injured.  The  board 
found  that  the  accident  arose  out  of  the  employment  and  the  court, 
on  appeal,  held  that  there  was  sufficient  evidence  to  justify  such 
a  finding.17 

87,  162  N.  Y.  S.  225,  17  N.  C.  C.  A.  267;  Rich  v.  Iowa  Portland  Cement 
Co.,  —  Iowa  — ,  170  N.  W.  532,  (1919),  18  N.  C.  C.  A.  1032,  3  W.  C.  L.  J. 
463. 

15.  Buvia  v.    Oscar  Daniels    Co.,  203    Mich.   73,   168  N.   W.   1009,   17 
N.  C.  C.  A.  960. 

16.  Etherton  v.  Johnstown  Knitting  Mills  Co.,  184  App.  Div.  820,  172 
N.  Y.  S.  724,  17  N.  C.  C.   A.  961,  3   W.  C.  L.  J.  361. 

17.  Chicago  Packing  Co.   v  Indus.   Bd.  of  111.,  282  111.  497,    118  N.  fc. 
727,  16  N.  C.  C.  A.  916.  1  W.  C.  L.  J.  749. 

667 


§  288  WORKMEN'S  COMPENSATION  LAW 


street  employee,  during  the  noon  hour,  engaged  in  conver- 
sation with  an  engineer  of  a  steam  roller  and  climbed  upon  the  en- 
gine to  get  out  of  the  wet.  The  engineer  started  the  roller  to  blow 
off  steam.  Upon  reaching  the  crest  of  a  hill  he  lost  control  of  the 
machine,  and  it  started  to  coast  downhill,  and  crashed  into  a  house, 
crushing  deceased  to  death.  The  court  held  that  the  injury  nei- 
ther arose  out  of  nor  in  the  course  of  the  employment.  18 

An  employee  was  injured  by  being  crushed  between  two  cars. 
The  evidence  was  conflicting  as  to  whether  claimant  was,  during 
the  intermission  between  the  loading  of  cars,  picking  up  briquet- 
tes, which  was  part  of  his  duties,  or  warming  himself  from  the 
heat  emanating  from  the  hot  briquettes  in  a  ear  next  to  which  he 
had  been  lying.  The  commission  awarded  compensation  on  the 
theory  that  it  was  immaterial  which  conclusion  was  reached,  say- 
ing: "The  man's  duties  involved  periods  of  leisure,  during  which 
apparently  he  was  expected  to  kill  time  as  best  he  might,  with  no 
specific  direction  as  to  what  he  should  do  or  where  he  should  wait  ; 
the  night  was  cold,  and  he  put  off  dumping  the  car  until  he  could 
warm  himself  from  its  heated  contents  ;  to  say  that  in  so  doing  he 
had  left  the  master's  employment,  was  pursuing  his  own  private 
purposes,  and  doing  something  foreign  to  the  work  he  was  employ- 
ed to  do,  is  illogical  to  a  degree.  To  protect  himself  from  undue 
and  unnecessary  exposure,  to  the  cold  was  a  duty  he  owed  his  mas- 
ter as  well  as  himself,  and  it  does  not  follow  that  he  left  his  mas- 
te^'s  employment  because  he  negligently  allowed  the  second  car 
to  run  into  him  while  he  was  warming  himself.19 

Where  an  employee  was  killed  while  using  a  lift,  which  was  in- 
tended to  be  used  only  for  goods,  in  going  to  an  upper  floor,  the 
court  held  that  the  accident  did  not  arise  out  of  the  employment.20 

18.  In  re  O'Toole,  229  Mass.  165,  118  N.  E.  303,  16  N.  C.  C.  A.  916,  1 
W.  C.   L.  J.  620;     Parsons  v.  Somerset,  etc.,  (1916),  W.    C.  &  Ins.  Rep. 
254,  15  N.  C.  C.  A.  264. 

19.  Northwestern  Iron  Co.  v.  Indus.   Comm.,  160  Wis.  633,  152  N.    W. 
416,  15  N.  C.  C.  A.  260;    Richards  v.  Indianapolis  Abattoir  Co.,  92  Conn. 
272,  102  Atl.  604,  1  W.  C.  L.  J.  311;    Malandrino  v.  S.  N.  Y.  Power  &  Ry. 
Corp.,  —  App.  Div.  —  ,  (1920),  180  N.   Y.   S.    735,  5  W.   C.  L.  J.   725; 
In  re  Sadie  M.  Miller,  3rd  A.  R.  U.  S.  C.  C.  171. 

20.  Palmer  v.  Harrods,  Ltd.    (1916),  W.  C.  &  Ins.  Rep.  213,   15  N.  C. 
C.  A.  261. 

668 


ACCIDENT  ARISING  OUT  OP  COURSE  OK  EMPLOYMENT.        §    288 

In  order  to  prevent  employees  from  opening  windows  which 
were  behind  tubs  of  dye  the  employer  nailed  the  windows  down. 
An  employee  attempted  to  open  the  windows  to  obtain  fresh  air, 
and  was  injured  when  the  chisel  which  he  was  using  broke  anl 
struck  him  in  the  eye.  The  court  denied  compensation,  holding 
that  an  employee,  though  under  the  protection  of  the  act  when 
doing  something  for  his  personal  convenience  where  the  act  was 
not  strictly  forbidden,  is  not  protected  when  violating  enforced 
rules  in  order  that  he  might  convenience  himself.  Therefore  tlie 
accident  in  this  case  did  not  arise  out  of  the  employment.21 

An  employee  engaged  to  watch  premises,  fell  asleep  and  lost  his 
balance,  thereby  falling  down  a  chute,  sustaining  injuries  which 
caused  his  death.  In  reversing  an  award,  the  court  held  that  de- 
ceased was  employed  to  watch  the  premises,  and  when  he  procur- 
ed a  chair  and  fell  asleep  he  abandoned  the  very  work  for  which 
he  was  hired,  and  therefore  the  accident  did  not  arise  out  of  the 
employment.22 

Where  an  employee  was  injured  while  using  a  planer,  whi'jli 
was  not  within  his  line  of  duty,  and  at  the  time  he  was  making 
something  for  himself,  the  court  held  that  the  accident  did  not 
arise  out  of  the  employment.23 

An  employee,  who  was  not  feeling  well,  was  advised  by  ail  em- 
ployee of  the  owner  of  the  place  where  he  was  installing  machinery 
to  take  some  epsom  salts,  and  told  him  where  it  was.  By  mistake 
li<-  took  barium  chloride  and  died.  In  reversing  an  award,  which 
was  affirmed  by  the  Appellate  Division,  the  court  said:  "Assum- 
ing that  this  occurrence  constituted  an  accident  under  the  act  and 
that  it  arose  in  the  course  of  decedent's  employment,  we  are  en- 
tirely unable  to  see  that  it  'arose  out  of  his  employment.'  Tbe 
findings  do  not  indicate  that  his  illness  in  any  manner  resulted 

21.  In  re  Borin,  227  Mass.  252,  116  N.  E.  817,  15  N.  C.  C.  A.   261. 

22.  Gifford  v.  Patterson,  Inc.,  222  N.  Y.  4,  117  N.  E.  946,  Rev's  165  N. 
Y.  S.  1043,  15  N.  C.  C.  A.  262,  1  W.  C.  L.  J.  434;  Colucci  v.  Edison  Port- 
land Cement  Co.,  —  N.  J.  — ,  (1920),  111  All.  4,  6  W.  C.  L.  J.  550;    Wela 
Paper  Co.  v.  Indus  Comm.,  --  111.  — ,  (1920),  127  N.  E.  732,  6.  W.  C.  L. 
J.  307. 

23.  Anderson  v.  Armstrong  &  Co.,  Ltd.,  (1917),  W.  .C.  &  Ins.  Rep.  Tl, 
15  N.  C.  C.  A.  263. 

669 


§  288  WORKMEN'S  COMPENSATION  LAWS. 

from  his  employment,  or  even  if  it  did,  that  his  employer  as  sm 
incident  to  condition  of  such  employment  had  undertaken  to 
supply  medical  attendance  or  medicines  in  ministering  to  such  an 
illness  as  this  was;  it  not  being  of  an  emergent  character.  The 
employer  had  done  nothing  to  authorize  or  induce  the  decedent  to 
take  the  poison  on  the  supposition  that  it  was  something  which  he 
needed  or  which  would  be  beneficial  to  him.  Decedent's  illness 
and  his  attempt  to  minister  thereto  were  not  ordinary  or  natural 
incidents  to  his  employment.  On  the  contrary,  it  is  found  that 
decedent's  mistake  was  the  result  of  his  voluntary  action,  induced 
by  the  advice  of  one  who  was  not  even  in  the  employment  of  bis 
employer,  but  legally  was  an  utter  stranger  thereto.  It  was  an 
employee  of  the  company  for  which  decedent 's  employer  was  work 
ing  who  persuaded  or  advised  him  to  take  the  medicine,  and  who 
guided  him  to  the  place  where,  instead  of  taking  such  medicine, 
he  obtained  the  poison  which  caused  his  death.  It  seems  to  us  that 
the  case  is  not  different  than  it  would  have  been  if  the  decedeat, 
voluntarily  acting  upon  the  advice  of  a  stranger,  had  visited  a 
physician  who  injured  him  by  malpractice,  or  had  sought  a  dis- 
penser of  prescriptions  who  gave  him  poison  instead  of  helpful 
medicine,  and  certainly  it  could  not  be  said  that  such  an  occurence 
would  have  arisen  out  of  his  employment  within  the  meaning  of 
the  statute."24 

Where  an  employee  was  injured  by  being  caught  in  a  fan  when 
he  was  placing  a  bottle,  containing  food,  for  the  purpose  of  heat- 
ing it,  in  a  pipe,  through  an  opening  other  than  the  one  the  em- 
ployer had  assented  to,  it  was  held  that  the  accident  did  not  arise 
out  of  the  employment.25 

<-  Where  an  employee  was  permitted  to  use  a  horse  and  cart  of 
his  employers  to  bring  his  own  trunk  from  the  depot,  and  the 
horse  ran  away  and  injured  the  employee,  it  was  held  that  the 
employee  was  using  the  horse  as  a  mere  licensee  and  was  not  do- 

24.  O'Neil  v.  Carley  Heater  Co.,  218  N.  Y.  414,  L.  R.  A.  1917A,  349,  113 
N.  E.  406,    15  N.  C.    C.  A.  263,   Rev'g  173  N.  Y.  App.  Div.  922,    157    N.  Y, 
Supp.  1138. 

25.  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368,  12  N. 
C.  C.  A.  891. 

670 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   288 

ing  anything  in  the  furtherance  of  his  master's  employment, 
therefore  the  accident  did  not  arise  out  of  and  in  the  course  of 
the  employment.26 

A  laborer  in  a  sawmill  was  told  several  times  to  throw  fuel  into 
a  furnace  on  the  side  away  from  a  revolving  saw.  He  chose  to  act 
contrary  to  instructions  and  was  injured  by  coming  in  contact 
with  the  saw.  It  was  held  that  his  injury  did  not  arise  out  of  the 
employment.  The  court  said:  "There  was  a  safe  place  to  work 
and  a  dangerous  place  to  work  at  the  fuel  pile.  The  respondent, 
as  was  his  lawful  right,  commanded  the  petitioner  to  work  on 
the  safe  side  of  the  fuel  pile  in  throwing  the  wood  to  the  furnace. 
That  then  became  the  sphere  of  the  respondent's  employment  of 
the  petitioner,  and  to  remove  any  uncertainty  in  fixing  the  sphere 
of  employment  between  the  safe  and  the  unsafe  side  of  the  fuel 
heap,  the  respondent  twice  ordered  the  petitioner  to  keep  away 
from  the  vicinity  of  the  saw.  When  the  petitioner  went,  against 
the  respondent's  orders,  in  close  proximity  to  the  saw  to  throw 
over  fuel  to  the  furnace,  it  was  a  new  or  added  peril  to  which  the 
petitioner,  by  his  own  conduct,  exposed  himself;  a  peril  which 
his  contract  of  service  neither  directly  nor  indirectly  involved 
or  obliged  him  to  encounter.  It  did  not  belong  to,  nor  was  it  con- 
nected with  what  the  petitioner  had  to  do  in  fulfilling  his  con- 
tract of  service  on  the  safe  side  of  the  fuel  pile."" 

Where  a  workman,  employed  to  do  work  by  hand,  tried  to  rig 
up  a  time  saving  device  by  throwing  a  rope  over  a  revolving 
shaft,  and  was  injured  in  so  doing,  it  was  held  that  the  accident 
did  not  arise  out  of  and  in  the  course  of  the  employment.28 

Where  a  servant  drank  a  poisonous  fluid  while  at  work,  be- 
lieving that  he  was  drinking  water,  the  injuries  received  were 
held  to  have  arisen  out  of  and  in  the  course  of  the  employment.29 

26.  Whitfield  v.  Lambert,  (1915),  W.  C.  &  Ins.  Rep.  48,  8  B.  W.  C.  C. 
91,  12  N.  C.  C.  A.  905. 

27.  Schelf  v.  Kishpaugh,  37  N.  J.  L.  J.  173,  9  N.  C.  C.  A.   652. 

,28.    Plumb  v.  Cobden  Flour  Mills  Co.,  6  B.  W.  C.  C.  245,  9  N.  C.  C.  A. 
655. 

29.  Archibald  v.  Ott,  77  W.  Va.  448,  87  S.  B.  790;  In  re  Cleo  Harold 
Kldwell,  3rd  A.  R.  U.  S.  C.  C.  178;  In  re  Joseph  Shinebeck,  2nd  A.  R. 
U.  S.  C.  C.  275. 

671 


§  288  WORKMEN'S  COMPENSATION  LAW 

A  railroad  employee  sought  shelter  tinder  a  box  car  during  a 
violent  rain  storm.  This  was  the  only  available  shelter.  An  en- 
gine moved  the  car  and  both  of  claimant's  legs  were  cut  off.  It 
had  always  been  customary  for  employees  to  seek  shelter  during 
a  storm  and  their  time  went  on  while  doing  so.  It  was  held  that 
claimant's  act  was  a  necessary  incident  of  his  employment,  and 
the  mere  fact  that  he  was  guilty  of  negligence  in  going  beneath 
the  car  did  not  take  him  outside  of  his  employment.30 

Where  an  employee  was  injured  while  answering  a  telephone 
call,  it  being  shown  that  the  employee's  duties  included  answer- 
ing 'phone  calls,  it  was  immaterial  that  the  call  happened  to  be 
for  himself.  The  accident  arose  out  of  and  in  the  course  of  the 
employment.33 

An  employee  was  called  from  his  work  to  answer  a  telephone 
call.  In  going  to  the  'phone  booth  he  was  injured.  Later  it  de- 
veloped that  the  call  was  not  for  the  employee.  The  court  held 
that  the  accident  arose  out  of  and  in  the  course  of  his  employ- 
ment, because  when  called  by  his  superior  officer  he  might  rea- 
sonably regard  it  as  a  command,  and  under  such  circumstances, 
the  risk  of  going  to  the  telephone  was  not  merely  an  incident  to 
his  employment,  but  was  an  inherent  and  component  element  of 
it.  The  court  further  said:  "When  a  workman  in  a  factory  goes 
to  a  telephone  which  is  maintained  in  the  factory  to  answer  a 
call,  from  whatever  source,  it  will  be  presumed  that  he  is  per- 
forming an  act  necessary  to  his  comfort  and  convenience,  and 
that  such  act  is  an  incident  of  his  employment,  where  the  em- 
ployer has  established  no  rule  to  the  contrary."32 

Where  a  cook  overexerted  himself  while  removing  his  effects 
from  a  sinking  ship,  and  died  of  heart  disease,  hastened  by  the 
overexertion,  the  accident  was  one  arising  out  of  the  employment, 

30.  Moore  v.  Lehigh  Valley  R.  Co.,  169  App.  Div.  177,  154  N.  Y.  S.   620 ; 
Piscente  v.  Delaware,  Lackawanna  &  Western  R.  Co.,  7  N.  Y.  St.  D.  R. 
460;  Franchi  v.  Delaware,  L.  &  W.  Ry.,  6  N.  Y.  S.  D.  R.  399;  Gargano  v. 
Delaware,  L.   &  W.  Ry.   Co.,  8  N.   Y.  S.  D.   R.  45;  In  r     Win.  R.  Kelley, 
3rd   A.  R.  U.  S.  C.  C.  176. 

31.  In  re  Cox,  225  Mass.  220,  114  N.  E.  281,  15  N.  C.  C.  A.  271. 

32.  Holland-St.  Louis  Sugar  Co.  v.  Shraluka,  64  Ind.  App.  — ,  116  N.  B. 
330,  15  N.  C.  C.  A.  272. 

672 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    288 

since  any  act  which  would  have  been  reasonable  for  any  one  to 
do,  when  leaving  a  sinking  ship,  which  was  his  temporary  home, 
was  within  the  scope  of  his  employment.33 

AVhere  a  chauffeur,  after  reaching  a  destination  to  which  he 
was  directed  by  his  employer  to  take  a  passenger,  found  that  the 
train  was  late,  and  continued  to  drive  around  the  town  for  the 
personal  convenience  of  himself,  and  the  passenger,  and  while 
doing  so  was  murdered  by  the  passenger,  who  suddenly  became 
insane,  it  was  held  that  the  accident  did  not  arise  out  of  and  in 
the  course  of  the  employment.34 

"Where  an  employee  is  injured  from  drinking  water  which  is 
furnished  by  his  employer,  the  injury  is  due  to  an  accident  aris- 
ing out  of  and  in  the  course  of  the  employment.3" 

Where  a  girl  was  injured  while  partaking  of  refreshments 
handed  to  her  by  her  employer  while  she  was  standing  on  &i\ 
elevated  platform  near  the  machine  she  was  operating,  it  was 
held  that  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment.86 

"The  employee  was  at  work  in  a  car  on  a  spur  track,  8  feet 
away  from  the  main  line  of  the  Boston  &  Albany  Railroad.  This 
spur  track  was  about  4  inches  below  the  main  line.  For  some  un- 
explained reason,  he  left  the  car  and  went  upon  one  of  the  main 
tracks  of  the  railroad,  where  he  was  struck  by  an  engine  and 
killed.  There  was  no  evidence  showing  it  to  be  any  part  of  his 
employment  to  cross  the  main  track,  nor  was  there  any  evidence 
tending  to  show  why  he  was  there.  The  plaintiff  is  not  entitled 
to  recover  under  this  statute  unless  the  injury  arose  out  of  and 
in  the  course  of  her  husband's  employment  and,  to  establish 
these  facts,  the  burden  of  proof  rests  upon  her.  It  is  not  enough 

33.  In  re  Brightman,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A.  1916A.  321, 
8  N.  C.  C.  A.  102. 

34.  Central  Garage  v.  Industrial  Comm,  286  111.  291,  121  N.  E.  587. 

35.  Vennen  v.  New  Dells  Lbr.  Co..  161  Wls.  370,  154  N.  W.  640,  10  N. 
C.  C.  A.  729.  L.  R.  A.  1916A,  273;  McKinnon  v.  Hutchison.  (1915).  W.  C. 

6  Ins.  Rep.  386.  2  Sc.  L.  T.  22,  10  N.  C.  C.  A.  732;  In  re  Fred  J.  Shurz, 
2nd.  A.  R.  U.  S.  C.  C.  100. 

36.  Carinduff  v.  Gilmore.  (1914),  W.  C.  &  Ins.  Rep.  247,  48  Ir.  L.  T.  137, 

7  B.  W.  C.  C.  981,  10  N.  C.  C.  A.  348. 

673 
W.  C.— 43 


§  288  WORKMEN'S  COMPENSATION  LAW 

to  show  a  state  of  facts  which  is  equally  consistent  with  no  right 
to  compensation  as  it  is  with  such  right ;  there  being  no  evidence 
to  show  that  the  fatality  was  caused  by  her  husband's  employ- 
ment or  that  it  occurred  while  he  was  engaged  therein,  she  can- 
not recover."37 

Where  a  helper  on  a  truck  was  killed  when  returning  from  a 
town  where  the  driver  had  gone  to  dissipate  after  completing 
his  work  at  the  place  where  his  duties  brought  him,  his  injuries 
arose  out  of  the  employment,  since  he  was  not  obliged  to  abandon 
the  truck  and  seek  other  conveyance  home  simply  because  the 
one  under  whose  direction  he  was  working  saw  fit  to  go  else- 
where and  not  return  immediately  upon  the  completion  of  the 
work  they  were  sent  to  perform.38 

Workman  injured,  while  doing  what  is  essential  to  sanitary 
conditions  or  to  the  comfort  and  welfare  of  the  employee,  when 
preparing  to  go  home,  is  within  the  protection  of  the  act.39 

It  has  been  held  that  where  it  was  the  established  custom  for 
employees  to  go  to  the  windows  for  fresh  air,  an  employee  killed 
while  so  doing,  was  killed  by  an  accident  arising  out  of  and  in 
the  course  of  the  empolyment.40 

An  employee,  who  was  injured  while  in  a  wash  room  for  a 
purpose  personal  and  necessary  to  himself,  was  injured  in  the 
course  of  his  employment.41 

Where  an  employee  for  his  own  convenience  kept  a  truck, 
which  he  was  using,  several  miles  distant  from  the  place  he  was 
supposed  to  keep  it,  and  was  injured  when  going  to  his  place  of 

37.  In    re  Savage,    222  Mass.    205,  110    N.  E.  283,    12  N.    C.  C.  A.  894; 
Chinock  v.  Potter  &  Clark,  Ltd.,  (1916),  W.  C.  &  Ins.  Rep.  55,  12  N.   C. 
C.  A.  896.  In  re  J.  J.  Johnson,  3rd.  A.  R.  U.  S.  C.   C.  179;  In  re  Maxwell 
Glaser,  3rd.  A.  R.  U.  S.  C.  C.  179. 

38.  Hartford   Ace.   &    Indem.   Co.   v.   Durham,   —  Tex.   Civ.   App.   — , 
(1920),  222.  S.  W.  275,  6  W.  C.  L.  J.  395. 

39.  American  Smelting  &  Ref.  Co.  v.  Cassil,  —  Neb.  — ,  (1920),  175  N. 
W.  1021,  5  W.  C.  L.  J.  552. 

40.  Sparks  Milling  Co.  v.  Indus.  Comm.,  —  111.  — ,   (1920),  127  N.  E. 
737,  6  W.  C.  L.  J.  299. 

41.  Steel  Sales  Corp.  v,  Indus.  Comm.,  —  111.  — ,  (1920),  127  N.  E.  698, 
6  W.  C.  L.  J.  303. 

674 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §    289 

employment  over  a  different  road  than  was  contemplated  in  the 
contract  of  employment,  his  injuries  did  not  arise  out  of  his  em- 
ployment.42 

It  has  been  held  that  injuries  to  an  employee,  while  using  an 
elevator  to  leave  the  place  of  her  employment,  during  the  noon 
hour  for  the  purpose  of  obtaining  theatre  tickets,  arose  out  of 
and  in  the  course  of  the  employment.  The  elevator  being  the  one 
regularly  used  to  reach  the  department  in  which  the  employee 
was  employed.43 

A  light-house  keeper,  who  was  allowed  to  raise  some  cattle  and 
provisions  on  the  government  reservation  for  his  own  convenience, 
was  not  injured  in  the  course  of  his  employment  when  gored  by 
his  own  bull  while  doing  chores.44 

It  has  been  held  under  the  Federal  Act  that  injuries  sustained 
by  a  ranger  while  taking  a  bath  in  a  creek  after  a  long  trip  and 
when  he  was  compelled  to  camp  out  in  the  performance  of  his 
duties,  was  a  compensable  injury  arising  out  of  his  employment.45 

Where  a  sick  employee  left  the  office  to  go  home  and  fell  over 
<i  balustrade  compensation  was  allowed  under  the  Federal  Act 
for  his  death,  but  it  was  based  rather  on  the  fact  that  the  balus- 
trade was  defective  than  that  the  injury  arose  out  of  or  in  the 
course  of  the  employment.46 

§  289.  Miscellaneous  Accidents.  Occuring  Within  "War 
Zone"  and  in  Munition  Works,  Together  With  Questions  Per- 
taining to  Employees  in  Military  Service,  as  Affected  by  Com- 
pensation Acts. — An  employee  was  killed  while  on  an  errand  for 
his  employer  when  a  bomb  exploded  near  him  in  the  street  during 
an  air  raid.  The  court  denied  compensation  on  the  ground  that 

42.  United   Disposal   &  Recovery  Co.  v.  Indus.   Comm.,  United   Engi 
neering  Co.  v.  Same,  —  111.  — ,  (1920),  126  N.  B.  183,  5  W.  C.  L.  J.  682. 

43.  White  v.  Slattery,  —  Mass.  — ,  127  N.  E.  597,  6  W.  C.  L.  J.  323. 

44.  In  re  Chancie  Fitzmorris,  3rd  A.  R.  U.  S.  C.  C.  169. 

45.  In  re  Lewis  H.  3ach,  2nd  A.  R.  U.  S.  C.  C.  275. 

46.  In  re  Ernest  C.  Varela,  2nd  A.  R.  U.  8.  C.  C.  248. 

675 


§  289  WORKMEN'S  COMPENSATION  LAW 

the  risk  of  being  killed  by  a  bomb  was  common  to  all  who  might 
be  at  or  near  the  spot  where  it  fell  in  the  street.47 

An  employee  was  sent  on  an  errand  to  a  warehouse  wherein  in- 
flammable materials  were  kept,  and  while  there  a  bomb  struck 
the  building  and  ignited  the  contents.  Deceased  was  later  found, 
and  his  body  bore  no  marks  of  violence.  The  County  Judge  de- 
cided that  the  employment  of  deceased  exposed  him  to  a  common 
danger  in  a  special  way ;  that  the  inflammable  nature  of  the  goods 
in  the  warehouse  added  a  special  and  additional  risk;  and  that 
from  the  facts  proved  it  was  inferable  that  deceased  died  from 
suffocation,  and  that  the  accident  arose  out  of  and  in  the  course 
of  the  employment.  The  judgment  was  affirmed  on  appeal.48 

Defendant  owned  a  public  house  in  London.  Applicant  was 
engaged  as  a  potman,  and  was  cleaning  a  brass  plate  on  the  street 
side  of  the  house  when  he  was  knocked  down  by  the  concussion  of 
an  exploding  bomb,  dropped  from  an  enemy  aircraft.  The  County 
Court  held  that  he  was  entitled  to  compensation,  but  on  appeal 
it  was  held  that  if  it  had  been  shown  that  the  risk  of  being  struck 
by  a  bomb  was  incidental  to  passing  through  or  being  in  the  street, 
the  award  could  be  upheld,  but  as  there  was  no  evidence  that  the 
applicant  "was  injured  through  a  risk  specially  attendant  upon 
his  being  on  the  street'  as  distinguished  from  his  being  in  any 
other  place,"  the  applicant  was  not  entitled  to  compensation.49 

Where  an  engineer,  who  took  refuge  under  a  truck  to  avoid 
injury  from  shells  thrown  by  enemy  warships,  which  were  bom- 
barding the  vicinity,  went  to  the  engine  to  open  the  injector  so 
as  to  prevent  the  boiler  tubes  from  being  burned,  and  when 
returning  to  the  truck  was  hit  by  a  fragment  of  a  shell,  it  was 
held  that  the  accident  did  not  arise  out  of  the  employment,  since 
he  was  not  by  the  nature  of  his  employment  exposed  to  any  special 

47.  Knyvett  v.  Wilkinson  Bros.  Ltd.,  118  L.  T.  R.  476,  17  N.  C.  C.  A, 
961. 

48.  Bird  v.  Keep,  118  L.  T.  R.  633,  17  N.  C.  C.  A.  962. 

49.  Allcock  v.  Rogers,  62  Sol.  J.  421  (1918),  Affg.  (1918),  W.  C.  &  Ins. 
Rep.  80 

676 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    289 

risk,  beyond  that  to  which  other  persons  in  the  vicinity  were  ex- 
posed.60 

An  engineer  was  injured  when  his  ship,  which  was  engaged  in 
fishing,  struck  a  mine.  The  ship  had  been  warned  against  going 
near  the  mine  fields.  The  lower  court  denied  compensation  on 
the  theory  that  an  accident  caused  by  an  alien  enemy  was  not  an 
accident  within  the  protection  of  the  workmen's  compensation  act. 
In  reversing  the  lower  court  his  Lordship  said:  "What  is  the 
duty  of  an  engineer  in  a  fishing  smack  like  this.  ?  He  has  nothing 
to  do  with  the  sailing  directions;  his  duty  is  primarily  to  obey 
the  lawful  orders  and  directions  of  the  master  or  the  mate,  or 
whoever  may  be  the  representative  of  the  master,  and  if  he  is  told 
down  in  the  engine  room  'Stop,'  'Full  steam  ahead,'  or  what 
not,  he  must  obey  those  orders,  and  there  is,  if  not  an  express, 
certainly  a  plainly  implied  term  of  the  engagement  of  the  engineer 
that  he  must  obey  the  orders  of  the  captain,  and  not  attempt  to  in- 
quire what  instructions  the  owners  have  given  to  the  captain."51 

A  traveling  salesman  was  killed  while  traveling  from  America 
to  England  in  the  interest  of  his  employer.  The  ship  upon  which 
he  had  taken  passage,  "The  Lusitania"  a  British  ship,  was 
torpedoed  by  a  German  submarine  within  the  German  war  zone, 
and  the  salesman  lost  his  life  in  the  sinking  of  the  ship.  "The 
extraordinary  risk  in  the  present  case,"  the  court  said,  "arose 
from  the  fact  that  Foley  was  on  an  enemy  ship  in  the  course  of 
his  employment.  His  employer  knew  of  this  risk.  If  the  Lusi- 
tania had  been  lost  through  a  collision,  fire  or  storm  at  sea,  re- 
sulting in  the  death  of  Foley,  it  would,  under  the  principle 
enunciated  in  all  the  cases  bearing  on  this  subject,  be  held  to  have 
been  an  accident  arising  out  of  his  employment.  Foley 's  presence 
on  the  ship  was  connected  with  the  very  employment  in  which  he 
was  engaged.  The  fact  that  the  Lusitania  was  lost  through  non«- 
of  the  common  perils  of  the  sea,  but  by  an  extraordinary  peril, 
does  not  make  the  extraordinary  peril  less  a  cause  of  accident 

60.  Cooper  v.  N.  E.  Ry.,  (1915),  W.  C.  &  Ins.  Rep.  572,  85  L.  J.  K,  H. 
187,  13  N.  C.  C.  A.  1011. 

51.  Risdale  v.  Owners  of  S.  S.  Kilmarnock,  (1915),  1  K.  B.  503,  W.  C. 
&  Ins.  Rep.  141,  9  N.  C.  C.  A.  716. 

677 


§  289  WORKMEN'S  COMPENSATION  LAW 

arising  out  of  Foley's  employment.  Both  Foley  and  his  employer 
were  chargeable  with  knowledge  of  the  perils  of  war  upon  the 
high  seas.  They  must  be  assumed  to  have  known  that  a  belligerent 
vessel  sailing  under  a  belligerent  flag  carrying  contraband  of 
war  subjected  the  vessel  to  attack  by  an  enemy  vessel,  and  that 
as  a  result  of  such  attack,  under  many  contingencies  recognized 
by  the  law  of  nations,  not  only  the  loss  of  the  vessel  attacked,  but 
the  loss  of  lives  of  those  upon  her  might  result.  The  fact  that 
the  attack  in  this  instance  was  not  executed  in  a  way  that  might 
have  been  anticipated,  but  in  a  manner  said  to  be  contrary  to  the 
law  of  nations,  may  operate  to  qualify  the  degree  or  nature  of 
the  danger  and  risk  to  such  a  peril,  but  does  not  eliminate  the 
essential  factor  in  the  case  that  the  voyage  was  one  pregnant 
with  risk  which  the  employer  must  have  contemplated,  as  arising 
out  of  and  in  the  course  of  the  employment.  *  *  *  In  the  present 
case,  if  the  Lusitania  had  struck  a  mine  instead  of  being  torpedoed, 
resulting  in  Foley's  death,  could  it  be  reasonably  contended  that 
his  death  was  not  due  to  an  accident  arising  out  of  his  employment  ? 
We  think  not.  It  may  be  well  that  those  whose  employments  re- 
quire them  to  travel  by  land  or  sea  are  known  by  their  employers 
to  be  subject  to  the  common  perils  that  such  traveling  incurs.  The 
risk  is  inherent  in  the  employment  itself.  The  manner  in  which 
the  accident  is  brought  about  is  not  at  all  the  essence  of  the  matter ; 
the  vital  question  always  being :  Was  the  accident  connected  with 
the  employment?  It  was,  when  it  arose  out  of  the  employment 
provided  it  occurred  in  the  course  of  the  employment.  Suppose  the 
Lusitania  had  not  been  torpedoed,  but  captured,  and  in  trans- 
ferring the  passengers  to  lifeboats  Foley  lost  his  life,  or  after 
the  passengers  had  been  transferred  to  lifeboats  a  storm  had  arisen 
sinking  the  lifeboat  in  which  Foley  was,  could  there  be  any 
doubt  whatever  that  Foley  would  have  been  considered  to  have  lost 
his  life  by  an  accident  arising  out  of  his  employment.  This  is 
the  underlying  doctrine  of  Zabriskie  v.  Erie  R.  Co.,  86  N.  J. 
L.  266  (7.  N.  C.  C.  A.  430n),  92  Atl.  385,  L.  R.  A.  1916A  315 
and  Terlecki  v.  Strauss,  85  N.  J.  L.  454  (4.  N.  C.  C.  A. 
584)  89  Atl.  1023  (aff'd)  86  N.  J.  L.  708,  92  Atl.  1087."  "The 
present  case  is  clearly  distinguishable  from  the  cases  referred  to 
678 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    289 

in  which  compensation  was  denied,  in  that  it  cannot  be  properly 
said  here  that  there  was  any  malicious  design  on  the  part  of 
the  German  Naval  forces  against  Foley  or  any  other  passen- 
ger, and  it  may  safely  be  assumed  that  the  prime  object  of 
the  German  naval  forces  was  to  destroy  the  enemy's  ship,  and 
not  the  lives  of  its  passengers.  It  is  said  that  the  attack  made  on 
the  Lusitania,  from  a  humane  and  civilized  standpoint,  was  bar- 
barous and  cruel  and  in  violation  of  the  law  of  nations,  and  that, 
therefore  the  act  of  torpedoing  the  steamer  was  not  within  the 
contemplation  of  the  employer  when  the  risk  of  going  by  such  ste;mi- 
cr  was  midrrtaken  by  its  agent,  Foley.  We  do  not  think  that  tl.e 
lawfulness  of  unlawfulness  of  the  conduct  of  the  German  naval 
officers  affects  the  matter  at  all.  If  the  Lusitania  had  been  attack- 
ed by  a  German  Cruiser,  and,  instead  of  surrendering,  offered 
resistance  or  attempted  to  run  away,  and  thereupon  the  German 
cruiser  by  a  well-directed  shot  struck  the  steamer  in  a  vital  part, 
causing  her  to  sink,  and  Foley  to  lose  his  life,  it  would  hardly 
have  been  contended  by  respondent  that  the  death  of  Foley  was 
not  due  to  an  accident  arising  out  of  his  employment.  Foley  *s 
employer  knew  that  the  former  had  taken  passage  on  a  British 
ship  and  that  such  ship  was  subject  to  the  risk  of  capture  by  th« 
German  naval  forces,  in  what  manner  that  might  be  accomplishftl 
was  unimportant,  so  long  as  the  employer  was  aware  of  the  risk. 
Whether  the  ship  was  destroyed  by  lawful  or  unlawful  means  is 
immaterial.  We  think,  therefore,  that  Foley 's  death  was  due  to  an 
accident  while  in  the  course  of  his  employment,  and  that  such  acci- 
dent arose  out  of  his  employment."  The  judgment  of  the  common 
pleas  was  reversed  and  remanded.52 

An  employee,  who  was  engaged  to  work  on  a  mine  sweeping 
bargi?,  was  drowned  when  passing  over  the  quay  after  leaving 
the  barge.  It  was  dark  and  he  fell  into  a  lock  adjoining  the  quay. 
The  lower  court  held  that  when  he  reached  the  quay  he  had  ceased 
to  be  in  the  employ  of  the  defendants  and  was  not  injured  in  the 
course  of  the  employment.  In  allowing  an  appeal  and  reversing 

52.  Foley  v.  Home  Rubber  Co.,  89  N.  J.  L.  474,  99  All.  624.  13  N.  C. 
C.  A.  1014,  (1917),  Rev'g  39  N.  J.  L.  J.  115,  (1916),  13  N,  C.  C.  A.  1012; 
Trumbull  v.  Trumbull  Motor  Car  Co..  1  Conn.  C.  D.  304. 

679 


§  289  WORKMEN'S  COMPENSATION  LAW 

the  lower  court  Pickford,  L.  J.,  in  passing  upon  this  point, 
said :  ' '  The  workman  in  this  ease,  in  order  to  get  to  the  actual 
place  of  work,  had  to  enter  and  leave  premises  on  which  he  had 
no  right  to  be,  and  no  reason  for  being  except  by  the  conditions 
of  his  employment,  and  in  crossing  them  to  encounter  dangers  which 
he  would  not  have  encountered  but  for  that  employment.  The 
public  had  no  right  to  enter  those  premises  by  virtue  of  the* 
general  rights,  and  were  not  exposed  to  the  dangers  which  this 
workman  by  reason  of  his  employment  had  to  encounter.  It  seems 
to  me  on  principle  that  any  accident  occurring  to  him  on  these 
premises,  to  which  he  was  taken  only  by  his  employment,  and  on 
which  he  had  no  right  to  be  but  for  his  employment,  was  an  acci- 
dent arising  out  of  his  employment,  and  that  the  relationship  of 
employer  and  workman  did  not  cease  till  he  left  those  premises 
and  his  position  became  again  that  of  an  ordinary  member  of  the 
public."53 

Compensation  was  allowed  to  a  workman  for  blood  poisoning, 
resulting  from  scratches  received  while  making  shells.  The  court 
held  that  the  infection  was  due  to  an  accident  arising  out  of  and 
in  the  course  of  the  employment.54 

An  employee  was  injured  while  going  up  a  stone  staircase,  and 
was  found  lying  on  the  landing  of  the  staircase  with  his  skull 
fractured.  In  holding  that  the  accident  occurred  in  the  course 
of  the  employment,  but  that  it  did  not  arise  out  of  it,  the  court 
said:  "Why  the  deceased  fell  cannot  be  definitely  stated.  One 
of  two  causes  is  suggested — namely,  either  that  he  became  giddy — a 
possiblie  result  of  Bright 's  disease  from  which  he  suffered — or 
that,  being  a  very  lame  man,  he  slipped.  He  may,  however,  have 
slipped  or  missed  his  footing  just  as  a  healthy  person  might  have 
done.  The  steps  and  landing  are  the  steps  and  landing  as  used 
by  the  public  when  Olympia  was  open.  The  steps  are  ordinary 
steps,  wide,  easy,  and  in  good  repair.  I  must  rely  on  the  evidence 
of  Lieut.  Palmer,  called  by  the  applicant,  and  find  that  the  light 

53.  Longhurst  v.  John  Stewart  &  Son,  Ltd.,  115  L.  T.  R.  399,  86  L.  J. 
K.   B.  1328,  32  T.  L,.  R.  722,  13  N.  C.  C.  A.  1017. 

54.  Burvill  v.  Vickers  Ltd.,  (1915),  W.  C.  &  Ins.  Rep.  563,  13  N.  C.  C. 
A.  1021. 

680 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §    290 

was  sufficient,  and  that  the  cases  placed  on  the  landing  neither 
obscured  the  light  or  constituted  a  danger  to  persons  using  the 
stairs.  The  deceased  was  exposed  to  no  particular  or  special  risk 
in  using  the  stairs,  and  the  accident  is  attributable  to  no  risk 
incidental  to  the  employment."50 

A  taxicab  driver  was  shot  while  driving  a  fare  to  a  fort.  He 
had  been  ordered  out  by  his  employer  at  two  o'clock  in  the  morn- 
ing and  warned  about  sentries.  While  driving  at  the  rate  of 
six  miles  an  hour,  he  was  shot  when  he  failed  to  hear  the  challenge 
of  a  sentry.  In  holding  that  the  accident  arose  out  of  the  em- 
ployment, the  court  said:  "The  taxicab  driver,  who  is  likely  to 
be  employed,  and  who  is  employed,  by  officers  in  the  neighborhood 
or  a  garrison  town  in  time  of  war  to  take  them  to  their  fort,  with 
the  knowledge  that  everbody  has  that  there  will  be  a  sentry  outside 
the  entrance  through  which  the  driver  must  proceed  before  he 
gets  to  the  fort,  may  very  well  be  said  to  run  a  special  risk  even 
on  the  brightest  day  at  noontide;  but  a  taxicab  driver  told  in  the 
course  of  his  employment  to  drive  an  officer  to  a  fort  past  one  or 
more  sentries  in  the  middle  of  the  night,  when  it  is  gusty  and 
rainy  and  he  has  a  noisy  engine,  is  subjected  to  one  risk  and  one 
risk  above  all  others  arising  out  of  his  employment —  that  of  being 
shot  by  the  sentries."56 

A  soldier,  who  had  been  drafted  into  the  army  and  sent  to  work 
with  a  civilian  logging  crew  was  within  the  protection  of  the 
Workmen's  Compensation  Act.57 

AGGRAVATION  CASES  AS  AFFECTED  BY  THE  DOCTRINE  OF  PROXIMATE 

CAUSE. 

§  290.  Aggravation  of  Pre-existing  Condition.— Where  an  em- 
ployee claimed  to  have  suffered  a  strain  while  at  work,  resulting 
in  a  hernia,  but  the  evidence  tended  to  show  that  such  hernia 

55.  Harder  v.  Gains  &  Sons,  (1916),  W.  C.  &  las.  Rep.  99,  13  N.  C.  C. 
A.  1022. 

56.  Thorn  v.  Humm  &  Co.,  (1915),  W.  C.  &  Ins.  Rep.  224,  9  N.  C.  C.  A, 
716. 

57.  Rector  v.  Cherry  Valley  Timber  Co.,  —  Wash.  — ,  (1921),  196  Pac. 
653. 

681 


§  290  WORKMEN'S  COMPENSATION  LAW 

might  have  been  produced  by  a  gradual  weakening  of  the  mem- 
branes brought  on  by  a  tubueular  condition,  the  injury  cannot,  in 
the  absence  of  clear  proof  to  the  contrary,  be  said  to  have  been 
caused  by  an  accident  arising  out  of  the  employment,  for  the  evi- 
dence is  equally  sufficient  to  establish  that  the  injury  was  due  to 
a  pre-existing  diseased  condition.58 

An  employee  was  operating  a  windlass,  and  after  hauling  up  a 
heavy  load  he  was  found  to  be  suffering  from  hemorrhages  due 
to  a  ruptured  aorta.  There  was  no  evidence  that  there  was  any 
unusual  strain.  The  court  held  that  the  injury  was  due  to  an  ac- 
cident arising  out  of  and  in  the  course  of  the  employment,  and 
not  to  a  pre-existing  diseased  condition,  for  in  the  instant  case, 
all  the  characteristics  of  an  accident  were  present.  The  occurr- 
ence was  sudden,  unexpected,  and  undesigned  by  the  workman. 
The  circumstances  were  clearly  such  that  the  commission  was 
justified  in  finding  that  the  hemorrhage  was  due  to  blood  pressure 
intensified  by  vigorous  muscular  exertion.  Relating  the  hemorr- 
hage to  physical  exertion,  rupture  of  the  aorta  by  force  from 
within  was  as  distinctly  traumatic  as  if  the  canal  had  been  sever 
ed  by  violent  application  of  a  sharp  instrument  from  without. 
There  was  no  direct  evidence  of  extraordinary  exertion  suddenly 
displayed.  When  last  observed  before  the  hemorrhage,  the  de- 
ceased was  working  in  the  manner  habitual  to  his  employment. 
The  fact  remains,  however,  that  an  extraordinary  and  unfore- 
seen thing  suddenly  and  unpremeditatedly  occurred,  and  pre- 
sence of  all  the  essential  attributes  of  accident  cannot  be  gain- 
said. There  was  ample  evidence  in  the  record  to  justify  the  find- 
ing of  the  Industrial  Commission  that  the  deceased  came  to  his 
death  by  accident,  and  the  circuit  court  therefore  properly,  con- 
firmed the  award.59 

An  employee  fell  and  fractured  his  femur  bone,  and  later  an 
amputation  of  the  leg  became  necessary.  The  evidence  tended  to 
show  that  the  amputation  was  necessitated  by  a  pre-existing 

58.  McPhee  &  McGinnity  Co.  v,  Indus.  Comm.  of  Colo.  —  Colo.  — , 
(1919),  185  Pac.  268,  5  W.  C.  L.  J.  160. 

59.  E.  Baggot  Co.  v.  Indus.  Comm.,  290  111.  530,  125  N.  E,  254,  5  W,  C, 
L.  J.  202. 

682 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   290 

cancer  and  not  by  the  accidental  injury.  Compensation  was 
denied,  as  the  loss  of  the  leg  was  not  proximately  due  to  the  in- 
jury.60 

An  employee,  engaged  in  baling  scrap  copper  was  found  dead 
near  the  baling  press,  with  a  completed  bale  of  copper  beside  him. 
There  was  no  evidence  proving  that  an  accident  occurred.  The 
court  held  that  compensation  may  be  awarded,  although  there 
was  a  pre-existing  disease,  if  the  disease  was  aggravated  and  ac- 
celerated by  an  accidental  injury  in  the  course  of  the  employ- 
ment, but  there  must  be  an  accidental  injury  as  the  immediate  or 
proximate  cause  of  death.  In  the  present  case  there  was  no  evi- 
dence tending  to  prove  any  accident  or  accidental  injury  to  the 
deceased.  Therefore  the  decision  of  the  board  that  the  death  was 
not  due  to  an  accident  arising  out  of  the  employment  was  cor- 
rect.61 

Deceased,  a  nightwatchman,  was  discovered  the  following 
morning  in  a  state  of  collapse.  He  developed  pneumonia  and  af- 
ter a  few  days  died.  It  was  claimed  that  his  pneumonia  Was 
traumatic  and  that  the  injury  was  due  to  an  accident  sustained 
by  deceased  while  alone  at  the  foundry  at  night.  "The  defend- 
ants deny  that  the  illness  and  death  of  Mailman  was  due  to  an 
injury,  accidental  or  otherwise.  They  argue  that  when  he  began 
work  on  the  evening  of  April  18th  he  was  'coming  down*  with 
pneumonia.  This  is  disputed.  If  true,  it  is  not  decisive.  Evidence 
that  an  existing  disorder  reaches  the  point  of  disablement  during 
employment,  of  course  does  not  prove  accidental  or  other  injury 
arising  out  of  such  employment.  It  is  sufficient  however  (assum- 
ing other  elements  proved),  if  by  weakening  resistance  or  other- 
wise an  -accident  so  influences  the  progress  of  an  existing  disease 
as  to  cause  death  or  disablement.  Voorhees  v.  Smith,  86  N.  J. 
Law,  500,  92  Atl.  280;  Trodden  v.  Me  Lennard,  4  B.  W.  C.  C.  190; 
Doughten  v.  Hickman,  6  B.  W.  C.  C.  77 ;  Puritan  v.  Wolfe  (Ind. 
App.)  120  N.  E.  417.  There  is  some  evidence  that  upon  the  body 
of  the  deceased  a  mark,  or  marks  were  observed  which  turned 

60.  Brady  v.    Holbrook,  Cabot    &  Rollins    Corp.,  189    App.  Div.    405, 
(1919),  178  N.  Y.  S.  504,  5  W.  C.  I*  J.  91. 

61.  Jakub  v.  Indus.  Comm.,  288.  HI.  87,  123  N.  E.  263,  4  W.  C.  L.  J.  153, 

683 


-§  290  WORKMEN'S  COMPENSATION  LAW 

black  when  blood  poisoning  set  in.  There  is  -some  medical  testi- 
mony to  the  effect  that  the  symptons  were  more  consistent  with 
traumatic  pneumonia  than  with  illness  otherwise  caused.  The 
spontaneous  exclamation  of  the  suffering  man,  'I  got  hurt,'  clear- 
ly admissible  for  this  purpose,  shows  that  what  he  sensed  and  felt 
was  the  shock  of  a  hurt  rather  than  the  prostration  of  illness.  In 
view  of  these  circumstances,  it  cannot  be  reasonably  said  that 
there  was  no  evidence  that  the  illness  of  the  deceased  was  trau- 
matic. There  is  evidence  that  Mailman  on  the  night  of  the  18th 
was  in  good  health.  He  was  left  performing  his  duties  at  the 
foundry  'laughing  and  joshing.'  The  following  morning  he  was 
found,  still  at  his  post  of  duty,  stricken  and  helpless.  The  de- 
ceased might  have  left  the  foundry  in  the  night  in  pursuit  of  his 
own  affairs,  received  an  injury,  and  found  his  way  back.  He 
might  have  been  injured  in  the  foundry  while  doing  something 
for  his  own  personal  pleasure,  entirely  independent  of  his  em- 
ployment. These  unsupported  hypotheses  are  so  improbable  as  to 
be"  almost  negligible.  From  all  the  circumstances,  the  commission- 
er drew  the  inference  that  Mailman's  injury  was  received  while 
employed  at  the  defendant's  foundry  and  arose  out  of  such  em- 
ployment. This  inference  is  neither  unnatural  nor  irrational."62 
A  workman  died  in  the  course  of  his  employment  from  a  rup- 
ture of  the  aorta,  which  was  caused  by  an  extra  effort  in  vomi- 
ting. The  vomiting  was  due  to  the  inhalation  of  noxious  gases  or 
some  similar  cause.  The  court  held  that  the  rupture  of  the  aorta 
was  the  result  of  accidental  "violence  to  the  physical  structure 
of  the  body"  within  the  meaning  of  the  Pennsylvania  stat- 
ute, and  the  fact  that  deceased  was  suffering  from  a  diseased 
physical  condition  was  immaterial  when  viewed  in  the  light 
of  the  following  decisions.  "While  the  fact  that  he  suffered 
from  a  malady  which,  in  time,  might  have  terminated  fatally, 
called  for  consideration,  it  was  in  no  sense  controlling.  If  death 
•comes,  during  the  course  of  employment,  in  an  ordinary  way, 
natural  to  the  progress  of  a  disease  with  which  one  is  afflicted, 

62.     Mailman  v.  Record  Foundry  &  Machine  Co.,  118  Me  172,  (1919),  106 
Atl.  606,  4  W.  C.  L.  J.  205;    Hackley-Phelps-Bonnell  Co.  v.  Indus.  Comm., 
-  Wis.  — ,  (1920),  179  N.  W.  590,  6  W.  C.  L.  J.  724. 
684 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    290 

and  with  which  he  was  smitten  before  the  accident,  there  can  be 
no  recovery  (McCauley  v.  Imperial  W.  Co.  supra,  261  Pa.  327, 
104  Atl.  617;  Lane  v.  Horn  &  Hardart  Co.,  supra,  261  Pa.  333,  104 
Atl.  615) ;  but,  if  the  demise  is  brought  about  by  an  injury  din- 
to  some  mishap,  or  accident,  happening  during  the  course  of  his 
employment,  the  fact  that  deceased  had  a  chronic  ailment  which 
rendered  him  more  susceptible  to  such  injury  than  an  ordinary 
person  would  be,  will  not  defeat  the  right  to  compensation.  Mad- 
den's  Case,  222  Mass.  487,  494,  111  N.  E.  379,  L.  R.  A.  1916D, 
1000.  Certain  of  the  cases  cited  are  governed  by  statutes  which 
differ  somewhat  in  legislative  language  from  the  Pennsylvania 
Act;  but  in  no  instance  is  this  difference  of  a  character  to  affect 
the  relevancy  of  the  decision,  so  far  as  it  involves  the  point  now 
before  us."68 

An  engine  fireman  fell  from  a  cab,  and  was  found  unconcious 
on  the  side  of  an  embankment  12  feet  high,  with  certain  scalp 
wounds  on  the  back  of  his  head,  and  later  died  from  a  hemorr- 
hage of  the  brain  and  fracture  of  the  skull.  It  was  contented  that 
the  hemorrhage  was  caused  by  a  syphilitic  condition  from  which 
deceased  was  suffering.  The  board  found  that  the  syphilitic  con- 
dition was  aggravated  under  such  circumstances  which  could  be 
said  to  be  accidental,  and  therefore  the  death  was  due  to  an  ac- 
cident arising  out  of  the  employment.6* 

"Where  an  employee  was  apparently  not  in  good  health  before 
the  accident,  and  after  the  accident  was  partially  incapacitated, 
the  incapacity  is  proximately  due  to  the  accident  operating  up- 
on his  diseased  physical  condition,  and  not  to  his  ailment  inde- 
pendent of  the  injury.  Therefore  his  incapacity  is  proximatoly 
caused  by  the  accident  arising  out  of  the  employment.  65 

Where  an  ice  man  was  struck  in  the  stomach  with  a  cake  of  ice, 
and  later  developed  delirium  tremens,  because  of  his  alco- 

63.  Clark  v.  Lehlgh  Valley  Coal  Co.,  264  Pa,  529,   (1919),  107  Atl.  858. 
4  W.  C.  L.  J.  747. 

64.  Peoria  Railway  Terminal  Co.  v.  Indus.  Bd.  of  111.,  279  111.  253,  116 
N.  E.  651,  15  N.  C.  C.  A.  632;    Hanson  v.  Dickinson,  —  Iowa  — ,  (1920), 
176  N.  W.  823,  5  W.  C.  L.  J.  837. 

65.  Big  Muddy  Coal  ft  Iron  Co.  v.  Indus.  Bd.,  279  111.  235,  116  N.  E.  662. 

685 


§  290  WORKMEN'S  COMPENSATION  LAW 

holic  condition,  which  existed  prior  to  the  accident,  the  court 
held  that  the  accident  and  not  the  alcoholic  condition  was  the 
proximate  cause  of  his  death.66 

As  a  general  rule  the  pre-existing  physical  condition  is  imma- 
terial if  the  injury  is  proximately  caused  by  an  accident  arising 
out  of  and  in  the  course  of  the  employment.  The  fact  that  the 
accident  of  itself  would  not  have  been  sufficient  to  cause  the  in- 
jury in  the  absence  of  a  pre-existing  disease  is  no  defence,  for  the 
employer  takes  the  employee  as  he  finds  him,  and  if  the  accident 
accelerates  or  aggravates  a  pre-existing  diseased  condition  the  in- 
jured party  is  entitled  to  compensation.  While  on  the  other  hand 
an  injury  due  to  the  natural  progress  of  the  disease  itself  will  not 
warrant  a  finding  that  the  injuries  were  due  to  an  accident.67 

In  a  recent  Louisiana  case  the  court  quoted  with  approval  and 
followed  the  following  rule  evolved  in  the  case  of  Behan  v.  John 
B.  Honor  Co.,  Ltd.,  143  La.  348,  78  So.  589,  L.  R.  A.  1918F.  862 : 

' '  The  fact  that  an  employee  injured  in  performing  service  aris- 
ing out  of  and  incident  to  his  employment  in  the  course  of  his 
employer's  occupation  was  already  afflicted  with  a  dormant  di- 
sease that  might  some  day  have  produced  physical  disability  is 
no  reason  why  the  employee  should  not  be  allowed  compensation, 
under  the  employers'  liability  statute,  for  the  injury  which,  add- 
ed to  the  disease,  superinduced  physical  disability. 

66.  Carroll  v.  Knickerbocker  Ice  Co.,  169  App.  Div.  450,  155  N.  Y.  S.  1; 
Heileman  Brewing  Co.  v.  Schultz,  161  Wis.  46,  152  N.  W.  446. 

67.  In  re  Brightman,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A.  1916A,  321; 
Western  Electric  Co.  v.  Indus.  Bd.  285  111.  279;    Hartz  v.  Hartford  Faience 
Co.,    90    Conn.    539,    97   Atl.    1020;     Sulzberger    v.    Indus.    Comm.,    285 
111.  223;  Carroll  v.  What  Cheer  Stables  Co.,  38  R.  I.  421,  96  Atl.  208;  1s- 
tnay  v.  Williamson,  1  B.  W.  C.  C.  231;    Braforst  v.  Owners  of  S.  S.  Blen- 
field,  6  B.  W.  C.  C.  613;    In  re  Madden,  220  Mass.  487,  111  N.  E.  379,  L.  R. 
A.  1916D,  1000.    Cyc.  76;  Clover  v.  Hughes,  3  B.  W.  C.  C.  275;  Finkeldav 
v.  Henry  Heide,  Inc.,  183  N.  Y.  S.  912,  6  W.  C.  L.  J.  565,  (1920);  Glennon's 
Case,  —  Mass.  — ,  128  N.  E.  942,  7  W.  C.  L.  J.  210;  Rockford  City  Traction 
Co.  v.  Indus.  Comm.,  —  111.  — ,  (1920),  129  N.  E.  135,  7  W.  C.  L.  J.  283;  In 
re  Colan,  —  Ind.  App.  — ,  116  N.  E.  842,  A.  1  W.  C.  L.  J.    39;    In  re-Roy 
R.  Heavrin,  3rd  A.  R.  U.  S.  C.  C.  154;  In  re  Wm.  C.  Frost,  3rd  A.  R.  D. 
S.  C.  C.  162. 

686 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    291 

"The  proof  goes  no  further  in  support  of  the  defense  of  this 
suit  than  to  show  that  the  plaintiff  might,  and  perhaps  would, 
at  some  time,  have  become  disabled  by  the  disease  that  was  lurk- 
ing in  his  system,  even  if  the  accident  complained  of  had  not 
happened.  The  evidence  leaves  no  doubt  that  the  plaintiff's 
physical  disability  resulting  from  the  accident  is  worse  than  it 
would  be  if  he  had  not  been  diseased  at  the  time  of  the  accident. 
But  the  accident  was  none  the  less  the  proximate  cause  of  Hit- 
present  disability. ' >68 

The  subject  of  aggravation  of  a  pre-existing  diseased  condition 
by  an  accident  arising  out  of  and  in  the  course  of  employment 
has  been  treated  at  length  in  connection  with  "Accidents"  Chap- 
ter V,  §  138,  ante. 

§  291.  Aggravation  of  an  Injury  by  Subsequently  Intervening 
Cause. — Where  a  Workman  suffered  an  injury  in  the  course  of 
employment,  which  so  impoverished  his  system  as  to  leave  him 
susceptible  to  tuberculosis,  of  which  there  was  not  tlje  slightest 
indication  before  the  injury,  a  finding  that  the  death  was  proxi- 
mately  caused  by  an  accident  arising  out  of  the  employment  was 
affirmed  on  appeal,  the  court  saying:  "Where  a  workman  receives 
personal  injury  from  an  accident  arising  out  of  and  in  the  course 
of  his  employment,  and  disease  ensues  which  incapacitates  him 
for  work,  the  incapacity  may  be  the  result  of  the  injury  within 
the  meaning  of  the  (English)  Workmen's  Compensation  Act, 
even  though  it  is  not  the  natural  result  of  the  injury.  The 
question  to  be  determined  on  a  claim  for  compensation  is  whether 
the  incapacity  is  in  fact  the  result  of  the  injury.  Ystradowen 
Colliery  Co.  v.  Griffiths,  (1909),  2  K.  B.  533.  In  a  case  where 
a  petitioner's  arm  was  broken  while  he  was  in  defendant's  em- 
ploy, and  the  fracture  properly  united,  but  there  developed  an 
abscess  upon  the  fleshy  part  of  the  thumb,  which  resulted  in 
ankylosis,  making  the  thumb  useless,  our  Supreme  Court  held  that 
the  ankylosis  of  the  thumb  was  an  injury  arising  by  accident  out 

68.  Fox  v.  United  Chemical  ft  Organic  Products  Co.,  —  La.  — .  86  So. 
311.  7  W.  C.  L.  J.  62. 

687 


§  291  WORKMEN'S  COMPENSATION  LAW 

of  and  in  the  course  of  the  employment.  Newcomb  v.  Albertson, 
85  N.  J.  Law,  435,  89  Atl.  928.  And  Mr.  Justice  Swayze,  in 
writing  the  opinion  in  Liondale  Bleach  Works  v.  Riker,  85  N. 
J.  Law,  426,  at  page  429,  89  Atl.  929,  observed  that  the  question 
of  disease  following  an  accident  was  considered  in  Newcomb  v. 
Albertson,  supra.  The  decision  there,  rested  on  certain  English 
cases,  is  to  the  effect  that  an  injury  which  follows  an  accident, 
and  which,  but  for  the  accident,  would  not  have  happened,  justifies 
the  finding  that  the  injury  in  fact  results  from  the  accident."69 

Where  an  employee  suffered  an  accidental  injury  to  his  hand, 
and  three  years  later  a  cancer  developed  on  his  penis,  which  he 
sought  to  show  resulted  because  of  his  impaired  physical  condition 
following  the  injury  to  his  hand,  the  court  held  that  the  evidence 
adduced  was  insufficient  to  establish  such  a  causal  connection  as 
to  warrant  any  such  finding70 

Claimant  was,  injured  in  a  fall  and  his  leg  fractured.  Later 
it  became  necessary  to  amputate  the  leg.  The  evidence  tended 
to  show  that  the  claimant  was  suffering  from  a  cancerous  infection 
at  the  point  where  the  fracture  occurred,  and  that  both  the  fracture 
and  the  amputation  was  proximately  caused  by  the  cancerous 
conditions,  and  the  accidental  fall  was  merely  the  occasion  and 
not  the  cause  of  the  injury.  Therefore  it  cannot  be  said  that 
the  loss  of  the  leg  was  due  to  an  accident  arising  out  of  the  em- 
ployment, but  was  due  to  the  cancerous  disease.71 

Plaintiff  in  error  insists  that  the  death  was  not  due  to  an  acci- 
dent arising  out  of  and  in  the  course  of  the  employment  of  the 
deceased,  but  was  due  to  an  intervening  cause.  The  testimony 
shows  that  November  16,  1914,  deceased,  with  others,  was  engage- 
ed  in  unloading  barrels  of  meats  from  a  car.  A  barrel  weighing 

69.  Lundy  v.  George   Brown  &   Co.,  93   N.  J.  L.   107,  (1919),  108  Atl, 
252,  5  W.  C.  L.  J.  294;     Bethlehem   Shipbuilding  Corp.,   Ltd.  v.   Indus. 
Comm.,  —  Cal.  — ,   (1919),  185  Pac.    179,    5    W.    C.    L.    J.  128;    Tanner 
v.   Aluminum  Castings  Co.  — Mich.—,    (1920),  178  N.  W.  6  W.  C.  L.  J. 
337. 

70.  Ortner  v.  Zenith  Carburetor  Co.,  —  Mich.  — ,  (1919),  175  N.  W.  122, 
5  W.  C.  L.  J.  273. 

71.  Brady  v.  Holbrook,  Cabot  &  Rollins  Corp.,  189  App.  Div.  405,  178 
N.  Y.  S.  504,  (1919),  5  W.  C.  L.  J.  91. 

688 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   291 

about  500  pounds  was  pried  from  its  position  on  top  of  other 
barrels,  suddenly  fell,  and  rolled,  striking  deceased,  knocking  him 
down  and  injuring  his  leg.  The  proof  warrants  the  conclusion 
that  the  abscess  which  developed  and  caused  deceased's  removal 
to  a  hospital  resulted  from  that  injury.  But  plaintiff  in  error 
contends  Bonkowski's  death  did  not  result  from  that  injury,  but 
was  due  to  his  fall  in  the  hospital,  which  intervened  between  the 
accident  received  where  he  was  employed  and  the  death.  The  test- 
imony of  the  physician  who  treated  Bonkowski  was,  in  substance, 
that  the  abscess  on  his  thigh  was  caused  by  an  external  injury; 
that  the  pus  which  had  formed  had  eaten  through  and  destroyed 
the  tissue  and  blood  vessels  and  attacked  the  bone,  which  ne<-> 
tated  curetting  and  chiseling  away  part  of  the  bone.  This  weak- 
ened the  bone,  and  while  getting  out  of  bed  the  limb  gave  away, 
Bonkowski  fell  to  the  floor,  and  the  femur  broke  at  the  place  it 
was  eaten  by  disease.  He  was  operated  on  six  days  later  and 
died  from  the  shock  the  same  day.  The  Industrial  Commission 
was  warranted  by  the  proof  in  finding  that  death  resulted  from 
the  injury.72 

Where  a  workman's  neck  was  cut  while  being  shaved  in  a  barber 
shop,  and  the  following  day,  while  handling  hides,  anthrax  germs 
entered  through  the  cut  causing  his  death,  it  was  held  that  the 
death  was  due  to  an  injury  arising  out  of  the  employment.73 

Where  an  employee  strained  himself  by  lifting,  and  later  died 
from   pneumonia,  which  the  evidence  established  was  due  to  the 
injury,  the  board  was  justified  in  finding  that  the  subsequent 
death  was  due  to  an  accident  arising  out  of  and  in  the  course  of 
the  employment.74 

72.  G.  H.  Hammond  Co.  v.  Indus.  Comm.  et  al.,  288  111.  262,  123  N.  E. 
384,  4  W.  C.  L.  J.  176;    Bailey  v.  Indus.  Comm.,  286  111.  623,  122  N.  E.  107; 
Bergstrom  v.  Indus.  Comm.,  286  111.  29;    In  re  Patrick  J.  Mara,  3rd  A.  R. 
U.  S.  C.  C.  104;    In  re  Joseph  Porter,  3rd  A.  R.  U.  S.  C.  C.  103;    In  re 
Freeman  H.  M.  Murray,  3rd  A.  R.  U.  S.  C.  C.  104. 

73.  Eldridge  v.  Endicott  Johnson  ft  Co.,  189  App.  Div.  63,  177  N.  Y.  S. 
863,  (1919),  Reversed,  see  126  N.  E.  264,  5  W.  C.  L.  J.  716. 

74.  Folta  v.  Robertson,  188  N.  Y.  359,  (1919),  177  N.  Y.  Supp.  34,  4  W. 
C.  L.  J.  429. 

689 
W.  C.— 44 


§  291  WORKMEN'S  COMPENSATION  LAW 

Where  an  employee  suffered  an  accidental  injury  and  later 
developed  hysterical  insanity,  a  finding  of  the  board  that  the  in- 
sanity was  due  to  the  injury  and  arose  out  of  the  employment, 
was  sustained  by  the  evidence.75 

An  employee  suffered  a  frostbite  while  performing  his  duties  in 
the  service  of  the  master  and  developed  erysipelas,  as  the  result  of 
the  injury,  which  caused  his  death.  His  death  was  held  to  be  due 
to  an  accidental  injury  arising  out  of  the  employment.76 

Where  a  workman  stepped  on  a  rusty  nail  and  later  contracted 
tetanus  by  the  entrance  of  germs  through  the  wound,  it  was 
held  that  he  sustained  an  injury  arising  out  of  his  employment.77 

Where  a  contract  of  employment  provides  that  the  employer  will 
furnish  competent  medical  treatment,  and  the  employee's  injury 
has  been  aggravated  by  the  furnishing  of  incompetent  medical 
treatment,  it  was  held  that  such  aggravation  did  not  fall  within  the 
compensation  act  of  Alaska,  for  the  injury  did  not  arise  out  of 
and  in  the  course  of  the  employment.78 

Where  an  employee  was  injured  in  the  course  of  his  employment, 
and  later  aggravated  the  injury  through  boxing,  it  was  held  that 
the  dormant  germs  in  the  locality  of  the  injury  had  been  aggravated 
by  the  violent  exercise  of  boxing  and  the  bout,  intervening  sub- 
sequent to  the  original  injury,  was  the  efficient  cause,  and  had  its 
origin  independent  of  the  original  cause  and  superceded  it,  and 
therefore  the  aggravated  injury  was  not  due  to  the  accident  arising 
out  of  the  employment.79 

An  employee  suffered  an  injury  to  his  leg,  and  was  ordered 
back  to  work  by  the  attending  physician  before  the  injured  member 
was  completely  recovered.  He  struck  his  leg  against  a  chair  with 
the  result  that  he  was  further  incapacitated.  In  holding  that  the 

75.  Kingan  &  Co.  v.  Ossam,  —  Ind.  App.  — ,  121  N.  B.  289,  3  W.  C.  L.  J. 
276. 

76.  Larke  v.  Hancock  Mut.  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320. 

77.  Putnam  v.  Murray,  174  App.  Div.  720,  160  N.  Y.  S.  811. 

78.  Ellamar  Min.  Co.  v.  Possus,  (C.  C.  A.),  247  Fed.  420,  1  W.  C.  L.  J. 
723;    Ruth  v.  Witherspoon-Englar  Co.,  98  Kan.  179,  157  Pac.  403,  L.  R.  A. 
1916E,  1201.     See  Medical  Treatmtnt  Causing  Disability  §  495  post. 

79.  Kill  v.  Indus.  Comm.  of  Wis.,  160  Wis.  549,  152  N.  W.  148,  L.  R.  A. 
1916A,  14. 

690 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    291 

subsequent  injury  was  proximately  caused  by  the  accident  arising 
out  of  the  employment;  the  court  said:  "We  are  of  the  opinion 
that  a  susequent  incident  or  accident  aggravating  the  original 
injury  may  be  of  such  a  nature  and  occur  under  such  circumstances 
as  to  make  such  aggravation  the  proximate  and  natural  result  of 
the  original  injury  .  Whether  the  subsequent  incident  or  accident 
is  such,  or  should  be  regarded  as  an  independent  intervening 
cause  is  a  question  of  fact  for  the  commission,  to  be  decided  in 
view  of  all  the  circumstances,  and  its  conclusion  must  be  sustained 
by  the  courts  whenever  there  is  any  reasonable  theory  evidenced 
by  the  record  on  which  the  conclusion  can  be  upheld.  The  testi- 
mony of  Scott,  as  to  exactly  what  occurred  on  the  evening  of  April 
15th  must  be  accepted  here  as  true.  According  to  1;his,  there 
was  nothing  but  the  accidental  striking  by  Scott  of  the  heel  of  the 
foot  of  the  injured  limb  against  the  pedestal  of  the  table  or  a 
chair,  done  in  the  attempt  to  save  himself  from  a  fall,  something 
to  have  been  reasonably  anticipated  when  he  was  discharged  from 
the  hospital  in  the  condition  in  which  he  then  was,  and  all  ot' 
which  happened  without  any  negligence  on  his  part.  Surely,  it 
such  a  thing  might  cause  a  displacement  of  the  bones,  he  was  in 
no  condition  to  be  called  on  to  go  about  without  an  attendant,  and 
it  was  reasonably  to  be  anticipated  that  if  he  was  left  thus  to 
care  for  himself,  such  a  thing  would  occur.  We  have  already  noted 
the  serious  nature  of  the  fracture,  the  lenght  of  time  required  to 
effect  a  permanent  reunion  of  the  bones,  and  the  extreme  difficulty 
of  keeping  the  bones  in  place  and  preventing  displacement.  Under 
all  the  circumstances  it  appears  to  us  that  it  might  well  be  concluded, 
as  was  concluded  by  the  commission,  that  such  an  incident  as  was 
described  by  Scott  was  not  an  independent,  intervening  cause,  with- 
in the  meaning  of  the  law,  but  that  the  striking  of  the  heel  and 
consequent  separation  of  the  bones,  which  had  been  partially,  but 
not  permanently,  united,  was  simply  a  proximate  and  natural  re- 
sult of  the  original  injury."80 

80.  Head  Drilling  Co.  v.  Indus.  Ace.  Comm.,  177  Cal.  194,  170  Pac.  157, 
1  W.  C.  L.  J.  470,  16  N.  C.  C.  A.  550;  Reiss  v.  North  way  Motor  and  Mfg. 
Co.,  201  Mich.  90.  166  N.  W.  840,  16  N.  C.  C.  A.  550,  1  W.  C.  L.  J.  1008; 
Shell  Co.  of  Cal.  v.  Indus.  Ace.  Comm.,  36  Cal.  App.  463,  172  Pac.  611,  2 

691 


§  292  WORKMEN'S  COMPENSATION  LAW 

§  292.  Accidents  Occuring  to  Employees  While  Performing 
Acts  for  the  Master  Other  Than  Those  Within  Their  Particular 

W.  C.  L.  J.  34,  16  N.  C.  C.  A.  552;  Pacific  Coast  Casualty  Co.  v.  Pillsbury, 
171  Cal.  319,  153  Pac.  24,  16  N.  C.  C.  A.  554;  Adams  v.  W.  B.  Wood  &  Co., 
203  Mich.  673,  169  N.  W.  845. 

In  following  cases  compensation  was  allowed,  in  accordance  with  the 
general  rule,  for  diseases  and  disability  following  accidental  injuries  aris- 
ing out  of  the  employment  where  the  subsequent  disability  was  directly 
traceable  to  the  effects  of  the  injury,  or  brought  on  because  of  an  im- 
paired physical  condition  resulting  from  the  injury  rendering  the  in- 
jured party  susceptible  to  the  attacks  of  disease. 

Vogeley  v.  Detroit  Lbr.  Co.,  196  Mich.  516,  162  N.  W.  975,  15  N. 
C.  C.  A.  641;  Leslie  v.  O'Connor  &  Richmond,  220  N.  Y.  672,  116  N.  E. 
1057,  15  N.-  C.  C.  A.  642;  Heileman  Brg.  Co.  v.  Schultz,  161  Wis.  46,  152 
N.  W.  446,  15  N.  C.  C.  A.  643;  Van  Keuren  v.  Dwight  Devine  &  Sons,  179 
N.  Y.  App.  Div.  509,  165  N.  Y.  S.  1049;  State  ex  rel.  Jefferson  v.  District 
Ct.  of  Ramsey  Co.,  138  Minn.  334,  164  N.  W.  1012;  Balzer  v.  Saginaw  Beef 
Co.,  199  Mich.  374,  165  N.  W.  785,  15  N.  C.  C.  A.  645;  Bucyrus  Co.  v.  Town- 
send,  64  Ind.  App.  — ,  117  N.  B.  656,  15  N.  C.  C.  A.  646;  Collins  v.  Brook- 
lyn Union  Gas  Co.,  171  N.  Y.  App.  Div.  381,  156  N.  Y.  S.  957,  15  N.  C.  C.  A. 
647;  In  re  Crowley,  223  Mass.  288,  15  N.  C.  C.  A.  346,  111  N.  E.  786;  Hills 
v.  Oval  Wood  Dish  Co.,  191  Mich.  411,  158  N.  W.  214,  15  N.  C.  C.  A.  649; 
In  re  Sponatski,  220  Mass.  566,  108  N.  E.  466,  8  N.  C.  C.  A.  1025;  Malone 
v.  Cayzer,  Irvine  &  Co.,  1  B.  W.  C.  C.  27,  (1908),  S.  C.  479,  45  Sc.  L.  R. 
351,  8  N.  C.  C.  A.  1025;  Mutter,  Howey  &  Co.  v.  Thomson,  (1913),  Sc.  Ct. 
of  Sess.  6  B.  W.  C.  C.  424;  Southwestern  Surety  Co.  v.  Pillsbury,  172  Cal. 
768,  158  Pac.  762;  In  re  Burns,  105  N.  E.  601,  218  Mass..  8,  5  N.  C.  C.  A. 
635;  Cline  v.  Studebaker  Corp.,  189  Mich.  514,  155  N.  W.  519;  Newcomb 
v.  Albertson,  85  N.  J.  L.  435,  89  Atl.  928,  4  N.  C.  C.  A.  783;  In  re  Felecita 
G.  Lynch,  3rd  A.  R.  U.  S.  C.C.  121. 

In  the  following  cases  it  was  held  that  the  subsequent  disability  or 
death  was  due  to  intervening  causes,  and  not  proximately  caused  by  an 
accidental  injury  arising  out  of  the  employment.82 

Southall  v.  Cheshire  Co.  News  Co.,  5  B.  W.  C.  C.  251,  (1912),  W.  C. 
R.  101,  8  N.  C.  C.  A.  1028;  McCoy  v.  Michigan  Screw  Co.,  180  Mich.  454, 
147  N.  W.  527,  5  N.  C.  C.  A.  455;  L.  R..A.  1916A,  323;  Roca  v.  Stanley  Jones 
&  Co.,  (1914),  7  B.  W.  C.  C.  101;  Humber  Steam  Towing  Co.  v.  Barclay, 
(1911),  5  B.  W.  C.  C.  142;  Bellamy  v.  J.  Humphries  &  Sons,  (1913),  6 
B.  W.  C.  C.  53;  Paton  v.  William  Dixon,  6  B.  W.  C.  C.  882;  Pacific  Coast 
Casualty  Co.  v.  Pillsbury,  171  Cal.  319,  153  Pac.  24;  Ruth  v.  Witherspoon- 
Englar  Co.,  98  Kans.  179,  157  Pac.  403;  Reiner  v.  Morris  Plains  State 
Hospital,  37  N.  J.  L.  J.  179;  Lesh  v.  Illinois  Steel  Co.,  163  Wis.  124,  157 
N.  W.  539. 

692 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   292 

Line  of  Duty  or  Whose  Conduct  While  Performing  Their  Duties 
to  the  Master  Places  Them  Outside  the  Scope  of  Their  Employ- 
ment.— A  workman  who  was  injured  at  a  buffing  machine  had 
been  told  by  his  instructor  not  to  reach  into  an  exhaust  pipe  under 
any  conditions.  He  dropped  an  article  into  the  pipe  and  removed 
the  lid  reached  into  the  pipe  to  recover  the  article,  and  his  hand 
\\.is  broken  and  cut  by  a  revolving  fan  in  a  box  connected  with 
the  pipe.  In  discussing  the  question  whether  or  not  the  accident 
arose  out  of  the  employment,  the  court  said:  "A  risk  is  inci- 
dental to  the  employment  .when  it  belongs  to  or  is  connected  with 
what  a  workman  has  to  do  in  fulfilling  his  contract  of  service.  *  *  * 
It  may  be  incidental  to  the  employment  when  it  is  either  an  ordinary 
risk  directly  connected  with  the  employment,  or  an  extraordinary 
risk  which  is  only  indirectly  connected  therewith.  (Byrant  v. 
Fissell,  supra,  on  p.  461)  It  is  stated  that  it  may  be  difficult  ti> 
conceive  of  any  injury  which  arises  'out  of  the  employment 
which  does  not  arise  'in  the  course  of  it;  but  the  converse, 
however,  is  not  true.  *  *  *  The  determination  of  this  question 
presents  one  of  the  most  difficult  problems  in  connection  with  the 
act.  It  has  been  said  that  each  case  must  depend  upon  its  own 
circumstances  and  cannot  be  solved  by  reference  to  any  formula 
or  general  principel.'  (Glass  on  Workman's  Comp.  Law,  10).  'An 
accident  only  arises  out  of  and  in  the  course  of  a  workmen's  em- 
ployment when  it  arises  from  his  doing  or  omitting  to  do  some  act 
within  the  sphere  of  his  employment.  If  he  chooses  to  step  out- 
side the  sphere  on  his  employment  and  to  do  something  he  is  not 
expected  or  required  to  do,  he  does  so  at  his  own  risk  and  is  not 
under  the  protection  of  the  act.  *  *  *  A  sharp  distinction  is 
drawn  between  doing  of  a  thing  recklessly  or  negligently  which 
;i  workman  is  employed  to  do  and  the  doing  of  a  thing  altogether 
outside  and  unconnected  with  what  he  is  employed  to  do,  and  if 
an  accident  happens  in  the  former  case  it  arises  out  of  and  in  the 
course  of  the  employment  but  not  in  the  latter  case.  There 
are  prohibitions  which  limit  the  sphere  of  employment  and  pro- 
hibitions which  only  deal  with  conduct  within  the  sphere  of  em- 
ployment. A  transgression  of  a  prohibition  of  the  latter  class 
leaves  the  sphere  of  employment  where  it  was.  and  Consequently 

693 


§  292  WORKMEN'S  COMPENSATION  LAW 

will  not  prevent  the  recovery  of  compensation.  A  transgrssion 
of  the  former  class  carries  with  it  the  result  that  the  man  has 
gone  outside  the  sphere.  If  the  act  which  caused  the  injury 
was  within  the  scope  of  the  servant's  employment,  the  mere  fact 
that  he  had  been  expressly  forbidden  to  do  that  act  will  not  neces- 
sarily be  fatal  to  his  claim.  Ordinarily,  where  workmen  are  not 
employed  to  work  with  machinery  or  in  close  proximity  thereto, 
they  are  held  not  entitled  to  compensation  for  injuries  received 
where  they  voluntarily  put  themselves  in  a  position  to  be  injured 
thereby.  *  *  *  An  accident  does  not  arise  out  of  the  employment 
if,  at  the  time,  the  workman  is  arrogating  to  himself  duties  which 
he  was  neither  engaged  nor  entitled  to  perform.  But  the  courts 
are  inclined  not  to  be  too  severe  upon  workmen  who  are  injured  by 
attempts  to  further  the  master 's  business,  'although  the  attempt  is 
in  a  line  somewhat  outside  the  precise  scope  of  the  employment. 
Where  a  servant  is  employed  to  do  a  certain  service  and  is  injured 
in  the  performance  of  a  different  service  voluntarily  undertaken, 
the  master  is  not  held  liable;  also  where  a  servant  voluntarily 
and  without  direction  from  the  master,  and  without  his  acquiescence 
goes  into  hazardous  work  outside  of  his  contract  of  hiring  he  puts 
himself  beyond  the  protection  of  the  master's  implied  undertaking, 
and  if  he  is  injured  he  must  suffer  the  consequences.  A  master 
is  not  liable  for  the  injuries  to  his  servant  unless  the  servant  was 
at  the  time  in  the  performance  of  some  duty  for  which  he  was  em- 
ployed. (Stagg  v.  Edward  Westen  Tea  and  Spice  Co.,  169  Mo. 
489).  A  volunteer  is  one  who  introduces  himself  into  matters 
which  do  not  concern  him,  and  does,  or  undertakes  to  do,  some- 
thing which  he  is  not  bound  to  do  or  which  is  not  in  pursuance 
or  protection  of  any  interest  of  the  master,  and  which  is  undertaken 
in  the  absence  of  any  peril  requiring  him  to  act  as  on  an  emergency. 
(Kelly  v.  Tyra,  103  Minn.  176,  114  N.  W.  Rep.  750).  The  scope  of 
a  servant's  duties  is  determined  by  what  he  was  employed  to  do 
and  what  he  actually  did  with  his  employer's  knowledge  and  con- 
sent, and  an  employee  who  was  performing  the  same  services  he 
was  in  the  habit  of  performing  when  he  was  injured  is  not  a 
volunteer  in  performing  such  duties.  (Dixon  v.  Chiquola  Manf. 
Co.,  86  S.  C.  435.)-  These  rules  were  briefly  summed  up  in 

694 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    292 

Moore  v.  Manchester  Liners,  (1910),  A.  C.  498,  where  it  was 
stated  an  accident  to  an  employee  occurs  in  the  course  of  employ- 
ment when  it  takes  place  'while  he  is  doing  what  a  man  so  em- 
ployed may  reasonably  do  within  a  time  during  which  he  is  em- 
ployed and  at  a  place  where  he  may  reasonably  be  during  that  time 
to  do  that  thing.'  The  Industrial  Board  found  that  the  weight 
of  the  testimony  showed  Cappucio  had  been  forbidden  to  reach 
into  said  pipe  to  recover  articles  that  were  dropped.  It  can 
hardly  be  said  that  the  evidence  shows  that  there  was  any  emergency 
in  order  to  protect  the  property  of  the  employer  that  would  justify 
Cappucio  in  reaching  into  the  exhaust  pipe.  There  is  no  evidence 
tending  to  show  that  there  was  any  danger  from  the  piece  of 
metal  being  left  in  the  exhaust  pipe.  Had  the  piece  fallen  upon 
the  floor,  there  can  be  no  question  that  it  might  well  be  considered 
as  in  the  line  of  his  duty  for  Cappucio  to  have  picked  it  up,  as 
that  would  ordinarily  involve  no  danger  and  would  be  naturally 
incidental  to  the  work  in  which  he  was  employed.  Of  course,  it 
can  readily  be  understood  that  he  desired  to  have  his  box  com- 
plete and  all  the  handles  there  and  not  to  be  critised  because  he 
had  lost  one;  but  it  is  plain  from  the  construction  of  the  exhaust 
system,  in  connection  with  the  machinery  at  which  he  was  working, 
that  he  must  move  with  deliberation  in  order  to  step  around  to 
the  large  pipe,  take  off  the  tightly  fitting  cover  and  then  reach 
in  some  distance, — far  enough  to  brin?  his  hand  in  contact 
with  the  fan.  It  certainly  cannot  be  said  that  there  was  an  emer- 
gency and  that  he  was  acting  under  a  sudden  impulse  to  protect 
the  property  of  the  employer.  It  is  plain  from  the  evidence  and 
from  the  photograph  in  the  record  showing  the  construction  of 
the  machinery  and  the  exhaust  pipe,  that  they  were  totally  di- 
tinct;  that  there  was  nothing  in  the  construction  that  would  tend 
in  the  slightest  degree  to  lead  Cappucio  to  think  his  work  was 
in  any  way  connected  with  cleaning  the  exhaust  pipe  or  taking 
anything  therefrom  that  had  fallen  into  it,  when  in  doing  so  he 
would  be  required  to  take  off  the  tightly  fitting  cover  of  the  pipe 
in  order  to  reach  into  the  opening.  Whether  this  is  true  or  not, 
we  think  the  conclusion  follows  from  this  record  that  the  act  of 
opening  this  exhaust  pipe  to  get  the  piece  of  metal  out  had  no 

695 


§  292  WORKMEN'S  COMPENSATION  LAW 

such  reasonable  connection  with  his  work  as  to  justify  him  in  the 
conclusion  that  it  was  his  duty  to  take  off  this  cover  and  attempt 
to  recover  the  article.  In  Bischoff  v.  American  Car  &  Foundry 
Co.,  190  Mich.  229,  157  N.  W.  Rep.  34,  it  was  held  that  'notice 
must  be  taken  that  a  factory  of  to-day  usually  includes  within  the 
fields  df  its  operations  many  fairly  distinct  lines  of  work,  from 
that  of  the  roustabout  engaged  in  the  ordinary  labor  that  almost 
anyone  may  perform,  to  that  of  the  expert  mechanic,  which  can 
be  done  safely  by  those  only  with  skill  and  experience.  The 
difference  between  these  various  kinds  of  work  was  always  recog- 
nized by  the  common  law,  and  it  was  held  to  be  negligence  for 
the  master  to  require  of  the  servant,  without  warning  and  in- 
structing him  in  the  performance  of  work  outside  and  more  dan- 
gerous than  that  which  the  latter  had  contracted  to  perform.  Such 
classification  of  work  exists  in  the  very  nature  of  things,  and  as 
much  under  the  statute  as  at  common  law.  Its  recognition  is  re- 
quired by  any  organization  of  a  factory,  not  only  for  efficiency 
but  as  well  for  the  purpose  of  guarding  against  accident  and  in- 
jury. And  if  a  workman,  when  there  is  no  emergency,  should  of  his 
own  volition  see  fit  to  intermeddle  with  somthing  entirely  outside 
the  work  for  which  he  is  employed,  he  ought  not  to  be  allowed  com- 
pensation upon  the  mere  plea  that  he  thought  his  act  would  be  for 
the  benefit  of  his  employer.  That  plea  may  be  of  value  under  some 
circumstances,  but  it  cannot  authorize  an  employee  to  voluntarily 
take  upon  himself  the  performance  of  work  for  which  he  was  not 
employed.'  The  reasoning  in  that  case  is  clearly  applicable  to  the 
work  which  Cappucio  was  employed  to  do, —  that  is  the  work  of 
polishing  was  clearly  different  from  the  act  of  putting  his  hand 
into  the  pipe  to  clean  it  out  or  remove  an  article  from  it."  There- 
fore the  accident  did  not  arise  out  of  the  employment.83 

A  boy  who  had  charge  of  the  handle  of  a  machine  lifted  off  the 
cover  over  some  pinion  wheels  and  played  with  them,  with  the 

83.  Eugene  Dietzen  Co.  v.  Industrial  Bd.  of  111.,  279  111.  11,  116  N.  E. 
684,  14  N.  C.  C.  A.  125;  Koza's  Case,  —  Mass.  — ,  (1920),  128  N.  E.  400,  6 
W.  C.  L.  J.  685;  Henry  v.  Indus.  Comm.,  —  111.  — ,  (1920),  127  N.  E.  714, 
6  W.  C.  L.  J.  276;  Haas  v.  Kansas  City  Light  and  Power  Co.,  —  Kan.  — 
1921,  198  Pac.  174. 
696 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    202 

result  that  his  Iwnd  was  caught  in  the  wheels  and  injured.  He 
had  been  ordered  not  to  lift  the  cover  or  touch  the  pinion  wheels. 
It  was  held  tluil  the  accident  did  not  arise  out  of  the  employment.84 

A  boy  employed  in  a  spinning  mill  injured  himself  while  clean- 
ing the  machinery  while  it  was  in  motion.  He  was  not  employed 
to  clean  the  machinery.  It  was  held  that  the  accident  did  not 
arise  out  of  the  employment.85 

A  lad  14  years  of  age  was  employed  as  a  bobbin  bry  at  a  spin- 
ning mill.  His  sole  duty  was  to  take  off  the  bobbins.  He  attempted 
to  replace  some  weights  that  had  fallen  off  when  the  machine  was 
in  motion  and  was  injured.  A  man  was  employed  for  leplacing  tlics,> 
weights.  It  was  held  that  the  boy  was  not  acting  within  the 
scope  of  his  employment,  and  therefore  the  accident  did  not  arise 
out  of  the  employment.86 

Where  a  boy  was  sent  downstairs  with  an  insole  to"  have  it  re- 
molded, and  in  the  absence  of  the  operator  he  attempted  to  re- 
mold it  himself  and  was  injured  is  so  doing,  it  was  held  that,  in 
the  absence  of  instructions  forbidding  him  to  touch  the  machine, 
he  was  entitled  to  compensation.87 

A  chauffeur,  engaged  in  moving  bricks  from  a  ear  by  the  use  of  an 
automobile  truck,  engaged  in  a  fight  with  another  chauffeur  over 
who  should  load  his  car  first,  and  was  killed.  It  was  held  that  de- 
ceased was  guilty  of  such  gross  wilful  misconduct  in  the  perform- 
ance of  his  master's  work  as  to  place  himself  outside  of  the  em- 
ployment, and  an  injury  sustained  while  engaged  in  the  fight  did 
not  arise  out  of  the  employment.88 

84.  Furniss  v.  Gartside  &  Co.,  (1910),  3  B.  W.  C.  C.  411. 

85.  Naylor  v.  Musgrave  Spinning  Co.,  4  B.  W.  C.  C.  286. 

86.  Michael  v.  Henry,  209  Pa.  St.  213,  16  Am.  Neg.  Rep.  151;    Yodakis 
v.  Alexander  Smith  Son's  Carpet  Co.,  183  N.  Y.  S.  768,  (1920),  6  W.  C.  L. 
J.  571. 

87.  Tobin  v.  Hearn,  33  Ir.  L.  T.  197;    Greer  v.  Thompson.   (1912),  W. 
C.  &  Ins.  Rep.  272;    Hartz  v.  Hartford,  Faience  Co.,  90  Conn.  539,  97  Atl. 
1020;    In  re  John  F.  Cody,  Jr.,  2nd  A.  R.  U.  S.  C.  C.  241. 

88.  Stillwagon  v.  Gallon  Bros.,  183  App.  Div.  141,  170  N.  Y.  Supp.  677,  2 
W.  C.  L.  J.  379,  16  N.  C.  C.  A.  932;  Central  Garage  of  La  Salle  v.  Indus. 
Comm.,  286  111.  291,  (1919),  121  N.  E.  587,  3  W.  C.  L.  J.  428. 

697 


§  292  WORKMEN'S  COMPENSATION  LAW 

A  cable  splicer's  assistant  offered  to  assist  the  splicer  in  the 
performance  of  his  duties,  which  were  not  any  part  of  the  assist- 
ant's duties.  The  foreman  did  not  object.  The  assistant  was  in- 
jured doing  the  work.  It  was  held  that,  "the  voluntary  offer  of 
a  willing  servant  to  make  himself  useful  in  a  matter  not  covered 
by  any  express  command,  when  the  proffered  service  is  accepted 
by  his  superior,  although  not  by  an  approval  expressed  in  words, 
cannot  be  said,  as  a  matter  of  law,  to  put  the  servant  outside  the 
limits  of  his  employment."89 

Where  a  workman,  employed  to  operate  an  engine  in  the  base- 
ment, goes  to  an  upper  floor  and  volunteers  to  take  fellow  em- 
ployees to  a  floor  above,  and  is  killed  in  so  doing,  his  conduct  took 
him  outside  of  his  employment,  therefore  the  accident  did  not 
arise  out  of  the  employment.90 

But  where  an  employee  of  a  contracting  company  was  injured 
while  attempting  to  save  from  a  cave-in  a  fellow  laborer,  work- 
ing a  few  feet  away  on  the  same  general  undertaking,  but  for 
another  employer,  it  was  held  that  the  accident  arose  out  of  the 
employment.91 

Where  one  employed  to  operate  paint  mixers  in  a  factory  volun- 
teered to  remove  a  belt,  the  condition  of  which  did  not  affect  his 
work,  and  was  injured,  it  was  held  that  the  accident  did  not  arise 
out  of  the  employment,  for  where  "one  introduces  himself  into 
matters  which  he  has  not  been  in  the  habit  of  doing  with  his 
employer's  knowledge  or  consent  or  which  is  not  in  pursuance 
of  any  interest  of  the  employer,  and  which  is  undertaken  in  the 
absence  of  any  peril  requiring  him  to  act  as  on  an  emergency," 
he  is  not  acting  within  the  scope  of  his  employment.92 

89.  Miner  v.  Franklin  County  Telephone  Co.,  83  Vt.  311,  75  Atl.  653,  26 
L.  R.  A.  (N.  S.)  1195;    Geary  v.  Kinzler  &  Co.,  (1913),  6  B.  W.  C.  C.  72. 

90.  Spooner  v.  Detroit  Saturday  Night  Club,  187  Mich.  125,  153  N.  W. 
657,  L.  R.  A.  1916A,  17;    Phillip  v.  Hamburg-American  S.  S.  Co.,  37  N.  J. 
L.  J.  167;     Pierre  v.  Barringer,  — La. — ,     (1921),    88   So.    691;     Waters 
v.  Win.  F.  Taylor  Co.,  218  N.  Y.  248,  112  N.  E.  727;     In  re  Joseph  C. 
Demereth,  2nd  A.  R.  U.  S.  C.  C.  276. 

91.  Waters  v.  Wm.  J.  Taylor  Co.,  218  N.  Y.  248,  112  N.  E.  727. 

92.  Mepham  &  Co.  v.  Indus.  Comm.,  289  111.  484,  124  N.  E.  540,  5  W 
C.  L.  J.  36. 

698 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPIX)YMENT.        §    292 

A  driver  of  a  street  flushing  machine  allowed  another  to  ride 
on  the  truck  with  him  and  to  drive  the  truck.  The  regular  driver 
sat  on  the  other  side  and  operated  the  levers,  and  while  doing 
this  he  noticed  a  wrench  which  he  thought  would  fall  from  the 
running  board,  and  in  stooping  to  pick  it  up,  he  fell  off  and  was 
injured.  The  lower  court  held  that  the  accident  arose  out  of  the 
employment.  Affirming  the  award  the  court  said:  "The  em- 
ployee of  Tryon  &  Brain  did  not  abdicate  either  the  place  or 
character  of  his  employment.  He  gave  up  part  of  his  work  to  a- 
nother,  it  is  true,  as  he  permitted  Schiling  to  run  the  truck,  but 
it  was  strictly  within  the  line  of  his  duty  to  operate  and  care  for 
the  levers  which  controlled  the  flow  of  water  from  the  truck  to 
the  street.  The  same  may  be  said  of  his  attempt  to  prevent  the 
wrench  from  falling  from  the  footboard.  He  was  not  outside  the 
course  of  his  employment  merely  because  he  allowed  a  stranger 
to  perform  a  "part  of  his  task  while  he  was  engaged  in  the  per- 
formance of  the  remainder  of  it."98 

A  boy  was  employed  to  hoist  rivets  to  workmen  on  the  top  of 
a  building.  On  the  day  of  the  accident  young  Carlson  told  his 
fellow  worker  that  he  discovered  a  new  way  to  hoist  the  rivets, 
and  in  pursuance  of  which  he  climbed  about  twenty-five  feet  up 
the  scaffolding,  seized  the  hoisting  rope,  to  the  other  end  of  which 
a  bag  of  rivets  was  attached,  and  jumped  to  the  ground,  upon 
the  theory  that  his  weight  would  counterbalance  that  of  the 
rivets,  and  so  hoist  them  to  the  workmen  above.  As  he  reached 
the  ground  his  head  struck  the  bottom  of  the  scaffolding,  he  lost 
hold  of  the  hoisting  rope  and  the  bag  of  rivets  fell  upon  his  sto- 
mach in  such  a  way  as  to  fatally  injure  him.  "While  it  may  be 
conceded  that  Carlson  at  the  time  he  met  with  the  fatal  accident 
was  performing  the  duties  of  his  employment  in  an  unusual  and 
dangerous  manner,  this  fact,  in  and  of  itself  alone,  does  not  place 
him  outside  the  provisions  of  the  Compensation  Act  (Laws  1919, 
e.  210).  There  being  a  conflict  of  testimony  as  to  whether  or  not 
tlio  boy  had  been  forbidden  to  leave  the  ground,  the  finding  <»f 

93.  Employer's  Llab.  Assur.  Corp.,  Ltd.,  of  London  v.  Indus.  Ace. 
Comm.  of  Cal.,  36  Cal.  App.  568.  177  Pac.  171.  17  N.  C.  C.  A.  942.  But  see 
Morris  &  Co.  v.  Indus.  Comm.,  —  111.  — ,  128  N.  E.  727,  7  W.  C.  L.  J.  41. 

699 


§  292  WORKMEN'S  COMPENSATION  LAW 

the  board  is  conclusive  on  the  fact  that  the  accident  arose  out  of 
the  employment."94 

Where  an  employee,  long  after  customary  working  hours,  dis- 
covered a  fire  on  his  employer's  premises,  he  was  not  acting  out- 
side the  scope  of  his  employment  when  he  attempted,  without 
instructions  from  his  employer,  to  save  his  employer's  property, 
and  an  injury  sustained,  arose  out  of  the  employment.95 

A  laborer  went  to  assist  a  machinist,  who  was  having  trouble 
in  adjusting  a  belt,  and  while  working  under  the  directions  of  the 
machinist  he  was  injured.  Assisting  the  machinist  was  not  any 
part  of  the  duties  of  the  laborer.  In  holding  that  the  accident 
arose  out  of  the  employment,  the  court  said:  "The  words  'aris- 
ing out  of  and  in  the  course  of  the  employment'  appear  to  me 
to  be  sufficient  to  include  something  which  occurs  while  the  work- 
man is  in  his  master's  employment  and  on  his  master's  work,  al- 
though he  is  doing  something  in  the  interest  of  his  master  beyond 
the  scope  of  what  he  was  employed  to  do.  The  act  does  not  say 
'when  doing  the  work  he  was  employed  to  perform,'  and  it  is  a 
fair  inference  that  if  it  had  been  intended  to  limit  the  right  to 
compensation  to  such  accidents  different  language  would  have 
been  used  from  that  which  occurs  in  the  act.  It  must  be  assumed 
therefor,  that  the  legislature  used  language  of  wider  scope  to  in- 
clude cases  where  a  workman  intervenes  to  do  something  useful 
or  helpful  to  his  master,  although  outside  the  special  duties  which 
he  is  employed  to  perform."96 

Where  an  injury  is  due  to  an  act  of  the  employee  which  takes 
him  outside  of  his  duties,  but  which  tends  to  benefit  both  himself 
and  his  employer,  he  must  show  that  the  act  was  done  with  the 
employer's  knowledge  and  acquiescence.97 

But  if  a  workman  steps  outside  of  his  particular  duties  to  do 
an  act  which  must  be  done  by  himself  or  someone  else  in  behalf  of 

i 

94.  Indus.  Comm.  of  Colo.  v.  H.  Koppers  Co.,  —  Colo.  — ,  1919,  185  Pac. 
267,  5  W.  C.  L.  J.   158. 

95.  Belle  City  Malleable  Iron  Co.  v.  Rowland,  (1919),  170  Wis.  293,  174 
N.  W.  899,  5  W.    C.    L.  J.    333. 

96.  Menzies  v.  M'Quibban,  2P,  732,  37  Sc.  L.  R.  526,  10  N.  C.  C.  A.  480 

97.  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368. 
700 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    292 

the  employer  he  does  not  cease  to  be  acting  in  the  course  of  the 
employment.  Therefore  where  a  stoker  attempted  to  replace  a 
bolt  in  a  fuel  conveyor,  and  was  injured  while  so  doing,  it  was 
held  that  the  accident  arose  out  of  his  employment.88 

A  bill  clerk  of  a  railroad  freighthouse  fell  into  a  pit  for  a  scales, 
which  was  in  process  of  construction  by  the  railroad.  The  pit 
was  located  along  the  usual  path  traversed  in  going  to  and  from 
midnight  lunch,  and  when  returning  from  lunch  the  accident 
occurred.  The  court  held  that  the  injury  was  not  one  "caused  by 
an  accident  due  to  a  condition  or  conditions"  of  his  occupation 
although  it  may  have  arisen  out  of  and  in  the  course  of  the  em- 
ployment, for  the  injury  must  have  occurred  while  the  employee 
was  at  work  in  his  occupation,  and  it  must  have  been  occasioned 
by  a  risk  or  danger  inherent  in  his  occupation.  In  this  case  the 
bill  clerk  was  not  engaged  in  such  mechanical  or  physical  labor 
as  to  be  subject  to  the  hazards  of  the  employment.90 

Where  a  machinist  disobeyed  his  master's  orders  to  remain 
in  a  pit,  and  as  a  result  he  was  run  over  by  another  racing  car 
while  he  was  running  to  his  master's  car  to  repair  it,  his  act  did 
not  place  him  outside  the  scope  of  his  employment  and  preclude 
a  recovery.1 

Where  a  hospital  employee  fell  down  a  stairway  while  in  the 
discharge  of  his  duties,  it  was  contended  that  because  of  intoxica- 
tion the  injury  did  not  arise  out  of  the  employment.  The  court 
held  that  in  the  absence  of  such  a  degree  of  intoxication  as  to 
completely  incapacitate  the  employee,  a  finding  by  the  board  that 
intoxication  was  not  the  cause  of  the  death,  will  be  sustained.2 

98.  McCormick  v.  A.  T.  KelHher  Lbr.  Co.,  18  N.  C.  C.  A.  57.  7   B.   W. 
C.  C.  1025;    In  re  Carson  Sutton,  3rd  A.  R.  U.  S.  C.  C.  166;    In  re  Lev! 
Chance.    3    A.    R.  U.  S.  C.  C.  166;    Haver   Washed    Coal    Co.   v.    Indus. 
Comm.,  —  111.  — ,  (1921),  129  N.  E.  521. 

99.  Arizona    Eastern    R.  Co.    v.  Mathews,    20    Ariz.  282,   (1919),  180 
Pac.  159,  4  W.  C.  L.  J.  3;    Rockford  Cabinet  Co.  v.  Indus.  Comm..  — 
111.  — ,   (1920),  129  N.  E.  142,  7  W.  C.  L.  J.  281. 

1.  Print  Motor  Car  Co.  v.  Indus.  Comm.  of  Wis.,  188  Wia.  436,  170  N. 
W.  285,  3  W.  C.  L.  J.  399. 

2.  Hahnemann  Hospital  v.    Indus.  Bd.  of  111.,  282  III.  316.  118  N.  E. 
767,  1  W.  C.  L.  J.  754. 

701 


§  292  WORKMEN'S  COMPENSATION  LAW 

An  employee  left  his  tools  in  a  car  and  the  next  day  the  car  was 
moved.  He  was  told  that  the  car  would  be  back  and  that  then  he 
could  get  his  tools.  Some  45  minutes  later  the  yardmaster  inform- 
ed him  that  the  car  was  approaching  in  a  train  which,  was  mov- 
ing slowly  and  he  could  jump  into  the  car  and  throw  his  tools 
out.  He  had  no  orders  from  anyone  in  authority.  When  crossing 
the  tracks  he  was  struck  by  a  suburban  train  and  killed.  There 
was  an  ordinance  forbidding  any  one  to  enter  the  yards.  The 
court  affirmed  an  award,  holding  that  the  accident  arose  out  of 
the  employment,  as  the  recovery  of  the  tools  was  an  incident  of 
the  work  and  there  was  a  casual  connection  between  the  injury 
and  the  employment.  The  violation  of  the  city  ordinance  was  on- 
ly prima  facie  evidence  of  negligence,  and  did  not  affect  the  re- 
covery of  compensation.3 

Where  a  night  watchman  fell  asleep  while  on  duty  and  fell 
down  a  chute,  it  was  held  that  he  had  not  placed  himself  without 
the  scope  of  the  employment,  and  therefore  the  injury  arose  out 
of  the  employment.4 

Where  a  youth  upon  request  climbed  out  a  window  upon  a 
markee  for  the  purpose  of  rescuing  a  slipper  belonging  to  a 
young  lady,  which  she  dropped  out  of  the  window,  the  board 
held  that  it  could  not  see  how  an  employer,  unless  gifted 
with  unusual  imagination,  could  for  an  instant  have  anticipated 
that  one  of  his  employees  would  climb  out  of  a  window  and  walk 
on  a  glass  markee  for  the  purpose  of  removing  a  slipper,  when 
there  were  other  methods  of  doing  it  with  perfect  safety.  His 
action  took  him  outside  of  his  employment,  and  therefore  his  in- 
jury did  not  arise  out  of  his  employment.5 

Where  an  employee  was  injured  while  watching  a  fire,  which  oc- 
curred in  his  employer's  plant,  it  was  held  that  he  had  not  a- 
bandoned  his  employment,  even  though  his  duties  did  not  require 

3.  Alexander  v.  Indus.  Board  of  111.,  281  111.  201,  117  N.  E.  1040,   15 
N.    C.    C.    A.  167. 

4.  Gifford  v.  Patterson,  222  N.  Y.  4,  165  N.  Y.  S.  1043,  B    1  W.  C.   L. 
J.  1320,    117    N.    E.    946. 

5.  Holmes    v.  United   States  Printing  Co.,  S.   D.   R.  Vol.   12,  p.   557; 
McGuire  v.  Brooklyn  Heights  Ry.  Co.,  S.  D.  R.  Vol.  10,  page  631,  Bull, 
vol.  2,  p.  30,  (1916) ;    In  re  Nicolo  Di   Cicco,  3rd  A.  R.  U.  S.  C.  C.  168. 

702 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   292 

his  presence  at  the  place  of  the  fire,  for  it  is  to  be  reasonably  ex- 
pected that  an  employee  will  volunteer  his  services  when  the 
property  of  his  employer  is  endangered. by  fire.8 

A  woman  employed  to  clean  house  once  a  week  was  shaking  a 
rug  from  a  porch,  in  an  unusual  place,  and  while  leaning  against 
the  porch  railing  she  fell  to  the  ground  and  was  seriously  injured. 
It  wa»  held  that  the  accident  arose  out  of  the  employment,  even 
though  this  was  an  unusual  place  in  which  to  clean  the  rugs,  and 
she  had  previously  performed  this  work  either  in  the  yard  or  un- 
der a  covered  porch  at  another  part  of  the  house.7 

A  bailiff,  acting  as  a  night  watchman  on  a  farm,  was  making  a 
final  inspection  at  night.  He  attempted  to  enter  the  poultry  shed, 
but  found  that  he  had  left  the  key  locked  up  in  the  cow  shed.  To 
save  himself  from  going  home  for  the  key  to  the  cow  shed,  he 
tried  to  gain  entrance  by  climbing  through  a  window,  and  in  so 
doing,  slipped,  fell  and  was  killed.  It  was  held  that  his  conduct 
was  not  so  unreasonable  as  to  prevent  the  accident  from  arising 
out  of  the  employment.8 

An  employee's  duties  were  to  fix  and  replace  light  bulbs.  The 
bulbs  were  locked  and  the  employee  had  to  look  up  the  foreman 
fvrrytime  he  wanted  the  key,  which  was  a  simple  three  cornered 
contrivance.  A  fellow  employee  handed  him  an  empty  cartridge 
shell  of  unusual  length  and  the  thought  occurred  to  him  that  he 
could  make  himself  a  key  and  save  the  time  required  to  look  up 
the  foreman  every  time  he  needed  the  key.  The  shell  proved  to 
be  a  dynamite  cap  and  exploded  when  he  was  working  on  it,  and 
destroyed  the  vision  of  his  eye.  In  affirming  an  award  the  court 
said:  "The  trial  court  evidently  took  the  view  that  De  Cook  in 
good  faith  believed  he  was  furthering  his  master's  business  and 
performing  an  act  which  he  might  reasonably  be  expected  to  do 
when  he  undertook  to  supply  himself  with  a  key.  He  had  never 
been  told  that  the  light  bulbs  were  to  be  under  lock  as  to  him  who 
was  charged  with  the  duty  of  seeing  that  the  broken  and  defec- 
tive ones  were  replaced.  When  a  servant  undertakes  in  the  course 

6.  Rzepcynski  v.  Manhattan  Brass  Co..  179  N.  Y.  App.  DIv.  952. 

7.  Bayon  v.  Beckley,  89  Conn.  154,  8  N.  C.  C.  A.  588.  93  Atl.  139. 

8.  Pepper  v.   Sayer.    (1914).  7   B.  W.   C.  C.  616. 

703 


§  292  WORKMEN'S  COMPENSATION  LAW 

of  his  employment,  during  the  proper  hours  therefor,  and  in  the 
proper  place,  to  do  something  in  furtherance  of  his  master's  busi- 
ness, and  meets  with  accidental  injury  therein,  the  trial  court's 
finding  that  the  accident  arose  out  of  and  in  the  course  of  em- 
ployment should  not  be  disturbed,  unless  it  is  clear  to  us  that  the 
ordinary  servant  in  the  same  situation,  would  have  no  justifica- 
tion for  believing  that  what  he  undertook  to  do  when  injured 
was  within  the  scope  of  his  implied  duties.  If  another  servant 
duly  engaged  in  the  master's  work  had  had  his  sight  destroyed, 
instead  of  De  Cook  in  this  accident,  the  thought  would  have  been 
almost  irresistible  that  this  law  was  meant  to  cover  such  injury. 
But,  upon  the  facts  in  this  case,  we  doubt  whether  De  Cook 
should  occupy  a  -less  favorable  position.  If  the  attempt  to  make 
a  key  was  reasonably  within  the  scope  of  his  employment  the 
fact  that,  from  ignorance  or  error  of  judgment,  he  made  use  of 
dangerous  material,  not  provided  by  the  master,  should  not  ne- 
cessarily exclude  the  conclusion  that  the  injury  arose  out  of  the 
employment.  The  term  can  not  be  restricted  to  injuries  caused 
'from  anticipated,  risks  of  the  service,  if  the  law  is  to  be  of  the 
benefit  intended."9 

The  janitor  of  a  school  house  is  not  engaged  in  an  employment 
connected  with  the  school  building  while  occupied  in  trimming 
trees  on  the  school  grounds,  and  an  injury  sustained  at  such  oc- 
cupation does  not  arise  out  of  or  in  the  course  of  employment  in 
conduct  and  management  of  the  school  building.10 

An  employer  was  engaged  in  the  business  of  leasing  roadmak- 
ing  machines  and  outfits.  One  of  his  empolyees  was  engaged  in 
repairing  a  clamshell  dredge,  which  the  employer  intended  to 
lease,  with  an  option  to  purchase,  and  was  injured  while  so  en- 
gaged. The  court  held  that  he  was  not  injured  while  performing 
work  in  the  usual  course  of  his  employer's  business.11 

9.  State  ex  rel.  Duluth  Brewing    &   Malting  Co.   v.  District  Ct.,   12'J 
Minn.  423,  151  N.  W.  912. 

10.  Compton  y.  Indus.  Com.,  288  111.  41,  122  N.  E.  872,  4  W.  C.  L.  J.  22. 

11.  Stansbury  v.  Indus.  Ace.  Comm.  of  Cal.,  36  Cal.  App.  68,  171  Par. 
698,  1  W.  C.  L.  J.  925,  16  N.  C.  C.  A.  884. 

704 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   292 

Where  a  girl,  employed  to  work  a  hand  press,  went  to  a  lower 
^oor,  and,  in  the  absence  of  the  foreman  for  whom  she  was  look- 
ing, attempted  to  help  another  girl,  who  was  operating  a  power 
press,  and  while  so  doing  she  was  injured,  it  was  held  that,  in 
view  of  the  fact  that  she  was  not  employed  to  operate  a  power 
press,  her  injury  did  not  arise  out  of  the  employment.12 

A  bridge  and  a  boat  were  provided  for  use  in  crossing  a  stream, 
which  ran  between  two  portions  of  a  farm.  A  workman,  in  the 
absence  of  the  boat  and  contrary  to  the  advise  of  his  employer,  in- 
stead of  going  some  distance  to  the  bridge,  tried  to  swim  across 
and  was  drowned.  It  was  held  that  his  death  was  not  due  to  an 
accident  arising  out  of  the  employment.18 

An  employee  was  killed  when  he  voluntarily  walked  upon  a 
railroad  track,  instead  of  in  a  passageway  supplied  by  a  railroad 
company.  It  was  held  that  the  accident  did  not  arise  out  of  the 
employment.14 

Where  a  delivery  wagon  driver  stopped  to  go  swimming,  after 
having  nearly  completed  his  work,  and  was  drowned,  it  was  held 
that  the  accident  did  not  arise  out  of  the  employment.16 

Where  an  employee,  when  unloading  coal,  went  under  the  car 
in  the  performance  of  his  duty,  and  was  killed,  it  was  held  that 
the  accident  arose  in  the  course  of  the  employment.16 

Where  an  employee,  while  going  from  a  telephone  to  a  room 
where  he  was  employed,  stopped  to  talk  to  a  fellow  employee,  and 
while  doing  so  he  reached  for  an  electric  lamp  and  received  a 
shock  which  caused  his  death,  it  was  held:  "The  finding  that  the 
fatal  injuries  received  by  the  employee  did  not  arise  out  of  and  in 

12.  Brinckman  v.  Harris,  (1916),  W.  C.  &  Ins.  Rep.  45,  12  N.  C.  C.  A. 
484;     Prltchard  v.  Torkington.   (1914),  7  B.  W.  C.  C.  719;    Morris    v. 
Muldoon,  (1919).  177  N.  Y.  S.  673,  4  W.  C.  L.  J.  623;    Adams  and  West- 
lake  Co.  v.  Indus.  Comm.,  —  111.  — ,  (1920),  127  N.  E.  168,  6  W..C.  L.  J.  8, 

13.  Guilfoule  v.  Fennessy,(  1912),  Irish  Court  of  Appeal,  6  B.   W.  C. 
C.  453. 

14.  Siemientkowski  v.  Berwind  White  Coal  Mining  Co.,  —  (N.  J.  L.)  — , 
92  Atl.  909;    Lynch  v.  Newman,  37   N.  J.  L.  J.    17;    Smith    v.    Crescent 
Belting  &   Packing  Company.  37  N.  J.   L.  J.  292. 

16.  McManus  v.  R.  H.  Macy  ft  Co.,  6  N.  Y.  St.  Dep.  344,  12  N.  C. 
C.  A.  82. 

16.     Mercer  v.  Ott,  78  W.  Va.  629,  89  S.  E.  952. 

705 
W.  C.— 45 


§  292  WORKMEN'S  COMPENSATION  LAW 

the  course  of  his  employment  must  stand,  as  there  was  evidence 
to  support  it.  If,  as  the  board  found,  the  deceased  while  on  his 
way  back  to  the  room  where  he  was  employed  stopped  at  the  tank 
to  talk  with  a  fellow  workman  on  matters  not  connected  with  his 
employment,  and  while  so  engaged  leaned  on  a  galvanized  iron 
table  and  took  hold  of  an  electric  lamp  to  enable  him  to  look  into 
the  tank,  merely  for  the  purpose  of  satisfying  his  curiosity,  it  is 
plain  it  properly  could  not  be  found  that  the  accident  arose  out 
of  or  in  the  course  of  his  employment.  Haggard's  Case,  125 
N.  E.  565;  Savage's  Case,  222  Mass.  205,  110  N.  E.  283;  O'Toole's 
Case,  229  Mass.  165,  118  N.  E.  303;  Warren  v.  Hedley's  Colliery 
Co.,  Ltd.  6  B.  W.  C.  C.  136 ;  Horsf all  v.  Steamship  Jura,  6  B.  W. 
C.  C.  213.  "ir 

Where  a  reporter  for  a  newspaper,  while  enroute  to  deliver  a 
story  he  had  written,  was  injured  when  he  stuck  his  head  out  of 
the  window  of  a  trolley  car  to  observe  the  flight  of  an  aeroplane, 
the  court,  in  holding  that  the  employee  was  acting  within  the 
scope  of  his  employment,  said:  "If  while  so  engaged  he  had  put 
his  head  out  of  the  window  caressly  or  for  his  own  ends,  and  had 
been  injured,  it  would  have  been  impossible  to  have  held  logically 
that  his  injuries  arose  out  of  his  employment.  That  would  have 
been  a  turning  away  from  his  employment  voluntarily,  and  not 
for  the  purposes  of  his  employmept.  It  would  not  have  been  a 
mere  momentary  act  of  negligence,  but  one  which  closely  ap- 
proached the  statutory  characterization,  willful  and  serious  mis- 
conduct. What  the  deceased  did  was  not  done  for  the  gratifica- 
tion of  his  personal  curiosity,  but  for  the  benefit  of  the  Courant. 
He  was  acquiring  information  which  the  deceased  deemed  of  in- 
terest to  his  employer,  and  this  was  directly  in  the  line  of  his 
duty.  At  the  very  time  he  was  hit  he  was  in  that  dangerous  posi- 
tion in  order  to  get  information  for  his  paper.  The  danger  to 
him  'had  its  origin  in  a  risk  connected  with  the  employment,'  for 
it  was  incidental  to  it,  and  indeed  a  part  of  it.  Between  this  in- 
cident of  his  employment  which  brought  his  head  out  of  the  win- 

17.    Maronofsky's  Case,  --   (Mass.)    — ,  (1920),  125  N.  E.  565,  5  W. 

C.  L.  J.  398;     Haggard's  Case,   (1920),  —  (Mass.)  — ,  125    N.  B.    565,    5 
W.  C.  L.  J.  397. 
706 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   292 

• 

dow  and  the  injury  there  was  a  causal  connection.  The  injury 
occurred  within  the  period  of  his  employment,  at  a  place  where 
he  had  a  right  to  be,  and  while  he  was  fulfilling  the  duties  of  his 
employment,  and  from  a  risk  connected  with  the  employment. 
Fiarenzo  v.  Richards  &  Co.,  93  Conn.  581,  107  All.  563 ;  Larke  v. 
Hancock  Mutual  Life  Ins.  Co.,  90  Conn.  303,  308,  309,  97  Atl.  320, 
L.  B.  A.  1916E,  584;  Robinson  v.  State,  93  Conn.  49,  104  Atl.  491; 
Jacquemin  v.  Turner  &  Seymour  Co.,  92  Conn.  386,  103  Atl.  115, 
L.  R.  A.  1918E,  496.  We  do  not  agree  with  the  plaintiff's  coun^.-l 
that  the  deceased's  injuries  arose  out  of  an  ordinary  street  acci- 
dent commonly  incident  to  travel  by  trolley,  and  that  the  cases. 
headed  by  Dennis  v.  White  &  Co.,  (1917),  A.  C.  479,  are  con- 
trolling. Loaning  one's  head  so  far  out  of  the  car  window  as  to 
be  hit  by  a  trolley  car  on  a  parallel  track  is  not  an  ordinary 
street  accident,  but  an  extraordinary  one."18 

Where  a  mining  company's  superintendent  directed  its  safety 
engineer  to  assist  in  caring  for  the  company's  influenza  patients, 
his  services  were  without  the  usual  scope  of  his  employment  but 
within  the  actual  scope  of  his  employment  and  injuries  suffered 
therein  entitled  the  engineer  to  compensation.10 

Where  an  employee,  whose  regular  employment  was  hazardous, 
went  to  a  police  station  at  the  direction  of  his  employer,  to  as- 
certain whether  bail  offered  for  a  customer,  arrested  in  the  em- 
ployer's adjoining  saloon,  was  satisfactory,  and  while  there  sus- 
tained a  broken  leg  as  the  result  of  a  push  by  a  policeman,  his 
injury  was  not  caused  by  an  accident  arising  out  of  and  in  tin- 
course  of  the  hazardous  employment,  in  which  he  was  regularly 
engaged.20 

Where  a  miner  left  his  regular  duties  and  wont  to' another  sec- 
tion of  the  mine  into  an  abandoned  opening,  where  his  duties  did 
not  call  him,  and  while  there  caused  an  explosion  of  gas,  his 

18.  Kinsman  v.  Hartford  Courant  Co.,  —  Conn.  — ,  (1919),  108  Atl.  562, 
6  W.  C.  L.  J.  361;    E.  E.  Walsh  Teaming  Co.  v.  Indus.  Comm.,  —  111.  — . 
125  N.  E.  331,  5  W.  C.  L.  J.  377, 

19.  Engles  Copper  Mng.  Co.,  v.  Indus.  A.  C.  of  Calif.,  — ,  Cal. — ,  192 
Pac.  845,  6  W.  C.  L.  J.  624. 

20.  Sabatell  v.  De  Robertis,  183  N.  V.  S.  796,  (1920),  6  W.  C.  L.  J.  573. 

707 


§  292  WORKMEN'S  COMPENSATION  LAW 

death  was  not  due  to  an  accident  in  the  course  of  his  employ- 
ment.21 

Where  an  employee  departed  from  the  scope  of  his  employment 
in  violation  of  orders,  and  as  a  direct  result  thereof  was  accidently 
crushed  to  death,  it  was  held  that  his  death  was  not  caused  by 
an  injury  arising  out  of  and  in  the  course  of  the  employment.22 

The  court  in  holding  that  an  accident  did  not  arise  out  of  the 
employment  said:  "Defendant  was  an  employer  and  was  under 
the  Compensation  Act  and  was  engaged  in  the  conduct  of  his 
business.  Plaintiff  and  his  employer  were  likewise  under  the  Com- 
pensation Act.  Plaintiff  was  driving  an  automobile  belonging 
to  his  employer.  The  automobile  had  been  assigned  to  another 
employee  of  the  same  employer,  but  doing  business  in  other  terri- 
tory, and  was  being  taken  by  plaintiff  from  a  railroad  station 
at  the  request  of  this  fellow  employee  and  solely  as  an  accommoda- 
tion to  him.  The  evidence  sustains  a  finding  that  the  accident  did 
not  arise  in  the  course  of  plaintiff's  employment  and  that  the  case 
is  not  within  the  third  party  provision  of  the  Minnesota  Com- 
pensation Act."23 

One  employed  as  a  janitor  had  departed  from  his  employment 
when  he  undertook  to  prune  trees  in  his  employer 's  yard  and  was 
engaged  in  horticultural  pursuits  which  are  excluded  from  the 
benefits  of  the  California  Act.24 

One  injured  while  violating  a  rule  which  has  never  been  en- 
forced is  not  without  the  scope  of  his  employment  and  is  entitled 
to  compensation.25 

Where  an  employer  acquiesces  in  the  exchange  of  work  among 

21.  Kuca  V.  Lehigh  Valley  Coal  Co.,  —  Pa.  — ,   (1920),  110  Atl.  731,  6 
W.  C.  L.  J.  499. 

22.  West  Side  Coal  &  Mining  Co.  v.  Indus.  Comm.,  —  111.  — ,  (1920), 
126  N.  E.  218,  5  W.  C.  L.  J.  686;  Fournier's  Case,  —Me.—,  (1921),  113 
Atl.  270. 

23.  Gibbs  v.  Almstrom,  —Minn.—,    (1920),  176  N.  W.  173,  5  W.  C.  L. 
J.  541. 

24.  Kramer  v.  Indus.  Comm.,  —  Gal.  App.  — ,  161  Pac.  278,  A.    1   W. 
C.,   L.  J.    235.- 

25.  Sesser  Coal  Co.  v.  Indus.  Comm.,  —  111.  — ,  (1921),  129  N.  E.  536. 

708 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPOYMENT.        §    292 

his  employees,  one  injured  while  exchanging  work  with  a  fellow 
employee  was  injured  in  the  course  of  his  employment.26 

A  janitor  was  not  acting  within  the  scope  of  his  employment 
when  he  was  putting  chains  on  the  wheels  of  a  pleasure  car  owned 
by  an  executive  officer,  who  was  taking  a  pleasure  ride  on  Sunday, 
nor  can  he  recover  on  the  theory  of  a  contract  of  employment 
with  the  executive  officer  where  he  had  received  for  such  personal 
services  gratuities  to  the  amount  of  $50  per  year." 

Where  a  lighthouse  keeper  was  killed  while  blasting  upon  a  road 
which  lead  to  the  government  reservation  in  order  that  tnm-1  l>y 
teams  in  reaching  the  reservation  would  be  facilitated,  it  was 
held  that  he  had  not  departed  from  the  scope  of  his  employment.28 
\j  Where  an  employee  left  his  place  of  work  and  went  to  another 
portion  of  the  premises  to  sleep  and  was  injured,  it  was  held  that 
he  had  departed  from  the  scope  of  his  employment.29 

An  employee  who  was  accidently  shot  when  he  stopped  to  talk 
to  another  employee  while  on  an  errand,  was  held  to  be  entitled  to 
compensation  under  the  Federal  Act.30 

Where  a  helper  on  a  truck  was  killed  when  returning  from  a 
town  where  the  driver  had  gone  to  dissipate  after  completing  his 
work  at  the  place  where  his  duties  brought  him,  his  injuries  arose 
out  of  the  employment  since  he  was  not  obliged  to  abandon  the  truck 
and  seeks  other  conveyance  home  simply  because  the  one  under 
whose  direction  he  was  working  saw  fit  to  go  elsewhere  and  not 
return  immediately  upon  the  completion  of  the  work  they  were 
sent  to  perform.81 

A  traveling  salesman  had  not  departed  from  his  employment 
while  performing  little  acts  of  courtesy  for  his  prospestive  cus- 

26.  Sunny  Side  Coal  Co.  v.  Indus.  Comm.,  —  111.  — ,   (1920),  126  N.  E. 
196,  5  W.  C.  L.  J.  679. 

27.  Gibbs  v.  Downs,  —  Conn.  — ,  (1920),   109  All.  170,  5  W.  C.  L.  J. 
777,  In  re  James  R.  Mauck,  2nd  A.  R.  U.  S.  C.  C.  276. 

28.  In  re  James  E.  Hall,  2nd  A.  R.  U.  S.  C.  C.  251. 

29.  Collucci  v.  Edison  Portland  Cement  Co.,  —  N.   J.  — ,  (1920),  111 
Atl.  4,  6  W.  C.  L.  J.  550. 

30.  In  re  Wm.  W.  Richardson,  3rd  A.  R,  U.  8.  C.  C.  179 

31.  Hartford  Ace.   &  Indem.    Co.  v.   Durham,   -  -   Tex.  Civ.  App.  — , 
(1920),  222  S.   W.  275,  6  W.  C.  L.  J.  395. 

709 


§  293  WORKMEN'S  COMPENSATION  LAW 

tomers  where  the  contract  of  employment  contemplated  that  he 
should  be  courteouss  and  obliging  even  to  an  extent  which  would 
result  in  acts  not  directly  connected  with  the  sale  of  his  commo- 
dities.32 

ASSAULTS. 

§  293.  Assaults  Resulting  From  Controversies  Connected  With 
or  Pertaining  to  the  Employment. — A  steamfitter  in  a  factory  was 
called  to  repair  a  leaky  pipe,  and  a  controversy  arose  between  him 
and  a  fellow  employee  concerning  the  work.  The  court  held  that 
the  main  question  at  issue  was  whether  the  accident  aroso  out 
of  and  in  the  course  of  the  employment,  and  the  burden  of  proving 
that  it  did  so  arise  rested  upon  the  applicant,  but  that  proof 
might  be  by  circumstantial  as  well  as  direct  evidence.  "We  think 
there  is  evidence  in  the  record  that  justified  the  Industrial  Board 
in  finding  that  the  altercation  grew  out  of  matters  connected  with 
Blum's  work,  and  that  therefore  the  accident  arose  out  of  and  in 
the  course  of  his  employment,  and  that  the  altercation  was  not 
purely  a  personal  one,  entirely  outside  of  the  scope  of  such  em- 
ployment. The  fact  that  Blum  was  not  actually  doing  the  special 
work  of  repairing  when  he  was  injured  does  not  alter  the  case. 
He  was  where  he  was  expected  to  be  preparatory  to  fixing  the 
leak."33 

Decedent,  a  watchman  in  a  boiler  factory,  while  in  the  per- 
formance of  his  duties,  was  killed  by  burglars.  Defendants  con- 
tended that  the  accident  did  not  arise  out  of  the  employment  since 
the  hazard  was  not  one  which  inhered  in  or  was  peculiarly  in- 
cident to  the  operation  of  a  boiler  manufacturing  plant.  Answering 
this  contention,  the  court  isaid:  "A  fair  statement  of  the  rule 
under  the  rather  limited  statute  of  this  state  is  that  the  injury 
must  result  from  some  danger  peculair  to  the  hazardous  character 
of  the  employment.  This  does  not  mean,  however,  that  in  a 

32.  Chase  v.  Emery  Mfg.  Co.,  —  Pa.  — ,    (1921),  113  Atl.  840. 

33.  Swift  &  Co.  v.  Indus.  Comm.,  287  111.  564,  122  N.  E.  796,  (1919),  18 
K.  C.  C.  A.  1048,  4  W.  C.  L.  J.  35;    Muller  v.  Klingman,  — Ind.  App— ,  125 
N.  E.  464,  5  W.  C.  L.  J.  384. 

710 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   292 

factory  classified  as  extrahazardous  because  of  the  use  of  dangerous 
machinery  none  but  machine  operators  or  employees  working  in 
proximity  to  machinery  may  have  compensation.  Regarding  for 
the  moment  the  operating  of  machinery  as  the  acme  of  the  em- 
ployent,  all  that  combines  to  make  it  such,  everything  integrated 
with  it  essential  to  effective  functioning,  other  conditions  being 
fulfilled,  is  included  in  the  hazard.  *  *  *  It  is  stated  that  in 
the  present  case  the  watchman  was  killed  in  the  factory.  There 
is  no  contention  that  a  night  watchman  was  not  necessary  to  the 
security  of  the  plant,  and  so  to  the  maintenance  and  prosecution 
of  the  defendant's  business."34 

A  head  waiter  was  shot  by  an  employee  whom  he  had  discharged. 
The  duties  of  the  headwaiter  included  the  hiring,  supervision  and 
control  of  the  employee  under  him.  On  the  morning  of  the 
shooting  the  employee  refused  to  obey  the  orders  of  the  headwaiter 
and  was  discharged.  About  11  o'clock  he  returned  and  shot  the 
headwaiter.  In  affirming  an  award,  the  court  said:  "We  are 
of  opinion  that  so  long  as  the  employee  while  in  the  performance 
of  the  employer's  business  properly  exercises  the  authority  con- 
ferred upon  him  by  his  contract  of  employment,  injuries  received 
by  him  resulting  from  such  employment  arise  out  of  the  employ- 
ment, and  if  death  ensues  as  in  the  case  at  bar  his  dependents  are 
entitled  to  compensation."35 

Deceased,  who  was  a  waiter  in  a  cabaret,  was  shot  when  he  at- 
tempted to  interfere  in  a  quarrel  between  a  patron  and  another 
waiter.  Upon  the  evidence  that  the  employees  were  expected  to 
interfere  in  such  quarrels,  with  the  intention  of  suppressing  them, 
and  that  this  particular  cabaret  was  of  a  type  where  such  brawls 
were  likely  to  occur,  the  court  held  that  deceased  was  acting  with- 
in the  course  of  his  employment,  and  the  employment  being  of 
such  nature  as  to  expose  him  to  these  extra  hazards  the  accident 

34.  Smith  v.  Kaw  Boiler  Works  Co.,  —  Kan.  — ,  180  Pac.  259,  4  W.  C. 
L.  J.  87,  18  N.  C.  C.  A.  1049;    Hellman  v.  Manning  Sand  Paper  Co.,  176  N. 
Y.   App.    Div.  127,  162  N.  Y.  S.  335,  14  N.  C.  C.  A.  237;  In  re  Paul  Walter- 
mire,  3rd  A.  R.  U.  S.  C.  C.  178. 

35.  Cranney's  Case,  232  Mass.  149,  122  N.  E.  266,  (1919),  18  N.  C.  C.  A. 
1050,  3  W.  C.  L.  J.  641;    Stertz  v.  Industrial  Insurance  Comm.,  91  Wash. 
588,  158  Pac.  256,  14  N.  C.  C.  A.  231. 

711 


§  293  WORKMEN'S  COMPENSATION  LAW 

arose  out  of  the  employment,  since  it  could  not  be  inferred  that  in 
advancing  towards  the  quarreling  parties  that  deceased  intended 
to  start  a  quarrel;  for  it  was  already  started.  Deceased's  inten- 
tion must  have  been  to  stop  it  as  his  duty  required.  The  court 
saying  that  this  "seems  from  the  uncontra dieted  evidence  to  admit 
of  little  doubt  and  less  speculation."36 

Where  an  assistant  cutter  in  a  shirt  waist  factory  was  fatally 
wounded  by  strikers  while  trying  to  save  his  employer  and  other 
employees  from  injury,  the  injury  arose  "out  of  and  in  the  course 
of  the  employment. ' '  The  court  said :  ' '  While  there  must  be  some 
causal  relation  between  the  employment  and  the  injury,  it  is  not 
necessary  that  the  injury  be  one' which  ought  to  have  been  foreseen 
or  expected.  It  must,  however,  be  one  which,  after  the  event,  may 
be  seen  to  have  had  its  origin  in  the  nature  of  the  employment. 
Such  was  our  holding  in  Pekin  Cooperage  Co.  v.  Industrial  Com., 
285  111.  31,  120  N.  E.  530.  Where  a  workman  voluntarily 
performs  an  act  during  an  emergency,  which  he  has  reason  to  be- 
lieve is  in  the  interest  of  his  employer,  and  is  injured  thereby, 
he  is  not  acting  beyond  the  scope  of  his  employment.37 

A  boiler  washer's  helper  quit  and  the  boiler  washer  applied  to 
the  foreman  for  another  assistant.  This  angered  the  first  helper, 
who  in  an  ensuing  quarrel  shot  the  boiler  washer.  It  was  held  that 
the  accident  arose  out  of  the  employment,  the  court  saying :  ' '  There 
was  a  causal  connection  between  the  conditions  under  which 
Kraujalis  was  required  to  perform  his  work  and  the  injury.  It 
cannot  be  said  that  the  proof  does  not  tend  to  show  that  the 
shooting  of  Kraujalis  was  caused  by  his  report  to  the  foreman 
that  Hunt  had  quit  work.  This  the  nature  of  his  work  required 
him  to  do,  as  he  was  obliged  to  ask  the  foreman  for  another  helper 
He  was  acting  entirely  in  the  line  of  his  duties,  and  this  brought 
upon  him  the  murderous  assault  by  Hunt  with  a  gun.  That  such 
is  an  unusual  and  extraordinary  result  makes  it  none  the  less  an 

36.  Stevens  v.  Indus.  Ace.  Comm.    of  Cal..  179  Cal.  592,  178  Pac.  296, 
(1919),  18  N.  C.  C.  A.  1052,  3  W.  C.  L.  J.  572;    San  Bernardino  County  v. 
Indus.  Ace.  Comm.  of  Cal.,  S5  Cal.  App.  33,  169  Pac.  255,  15  N.  C.  C.  A.  292. 

37.  Baum  v.  Indus.  Comm.,  288  111.   516.  123  N.   E.   625,  4  W.   C.   L. 
J.  357,  18  N.  C.  C.  A.  1053. 

712 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   293 

incident  of  the  employment.  There  is  no  dispute  that  Kraujalis 
was  shot  in  the  course  of  his  employment,  and  we  cannot  say  the 
Industrial  Commission  and  the  Circuit  Court  erred  in  finding  the 
injury  arose  out  of  the  employment,  and  this  conclusion  is  sus- 
tained, in  principle,  by  Trim  School  District  v.  Kelly,  7  B.  W. 
C.  C.  274,  where  the  teacher  was  assaulted  and  killed  by  bad 
and  unruly  pupils.  Polar  Ice  and  Fuel  Co.  v.  Mulray  (Ind.  App.), 
119  N.  E.  149?  In  re  Heitz,  218  N.  Y.  148,  112  N.  E.  750,  L 
R.  A.  1917A,  344.  "38 

A  collector  for  a  brewery,  while  on  his  rounds  of  collection,  was 
shot  by  robbers.  Affirming  an  award  in  claimant's  favor,  the  court 
said :  ' '  The  fact  that  the  death  of  Spang  was  intentionally  caused 
does  not  defeat  the  claim.  He  was  killed  as  an  incident  of  his 
employment,  because  he  had  in  his  possession  money  belonging  to 
liis  employer,  which  it  was  the  purpose  of  his  slayer  to  feloniously 
appropriate.  An  injury  caused  deliberately  and  willfully  by  a 
third  party  may  be  an  'accidental  injury'  within  the  meaning 
of  the  act,  from  the  viewpoint  of  the  employer  and  employee. ' '39 

Claimant 's  husband  and  another  were  unloading  bricks,  and  they 
got  into  a  dispute  as  to  which  was*  en  titled  to  load  first,  and  in  a 
quarrel  that  ensued  claimant's  husband  was  killed.  In  reversing 
an  award,  the  court  held  that  the  injury  was  not  a  natural  in- 
cident to  the  work  deceased  was  engaged  in,  and  in  participating 
in  a  fight  he  took  himself  outside  of  his  employment.40 

Where  claimant,  culling  barrel  staves  for  a  barrel  raiser,  was 
assaulted  by  an  employee,  who  was  culling  staves  for  another 
barrel  raiser,  because  of  a  dispute  in  regard  to  one  taking  staves 
from  the  rack  of  the  other,  he  suffered  an  "accidental  injury  in 
the  course  of  his  employment"  and  one  arising  out  of  the  employ - 
nii  nt,  the  court  saying:  "No  fixed  rule  to  determine  what  is  a 
risk  of  the  employment  has  been  established.  Where  men  axe 

38.  Chicago  R.  I.  &  P.  Ry.  Co.  v.  Indus.  Comm.,  288  111.  126    123  N.  E. 
278,  (1919),  4  W.  C.  L.  J.  159,  18  N.  C.  C.  A.  1054. 

39.  Spang  v.  Broadway  Brewing  &  Malting  Co.,  182  N.  Y.  App.  Div.  443, 
169  N.  Y.  S.  574,  17  N.  C.  C.  A.  787,  1  W.  C.    L.  J.  1133. 

40.  Stillwagon  v.  Callan  Bros.,  170  N.  Y.  677,  121  N.  E.  893,  16  N.  C. 
C.  A.  932,  2  W.  C.  L.  J.  379;    Knocks  v.  Metal  Package  Corp.,  —  N.  Y.  App. 
Div.  — ,  185  N.  Y.  8.  309,  7  W.  C.  L.  J.  350. 

713 


§  293  WORKMEN'S  COMPENSATION  LAW 

working  together  at  the  same  work  disagreements  may  be  expected 
to  arise  about  the  work,  the  manner  of  doing  it,  as  to  the  use  of 
tools,  interference  with  one  another,  and  many  other  details  which 
may  be  trifling  or  important.  Infirmity  of  temper,  or  worse,  may 
be  expected,  and  occasionally  blows  and  fighting.  Where  the  dis- 
agreement arises  out  of  the  employer's  work  in  which  two  men  are 
engaged,  and  as  a  result  of  it  one  injures  the  other,  it  may  be 
inferred  that  the  injury  arose  out  of  the  employment.  The  origin 
of  this  difficutly  was  trifling — the  taking  of  a  few  staves  from 
the  claimant's  rack,  to  which  he  objected,  saying,  as  he  testified, 
that  if  Miller  would  stay  in  there  he  would  be  up  with  the  claimant. 
The  dispute  was  concerning  the  employer's  work  in  which  the  men 
were  both  engaged,  and  there  is  evidence  tending  to  show  that 
claimant  was  not  responsible  for  the  assault."41 

Two  employees  engaged  in  a  fight  as  the  result  of  an  altercation 
concerning  the  use  of  certain  ladles  and  one  was  killed.  The 
fight  occurred  in  the  course  of  the1  employment  but  did  not  origi- 
nate in  it  or  arise  as  a  consequence  or  incident  of  it.  These  men 
turned  temporarily  from  their  work  to  engage  in  their  own  quarrel. 
Nothing  their  employer  required  of  them  would  necessarily  pro- 
voke them  to  quarrel,  nor  could  this  have  been  reasonaby  antici- 
pated. The  fact  that  employees  sometimes  quarrel  and  fight  while 
at  work  does  not  make  the  injury  which  may  result  one  which 
arises  out  of  their  employment.  There  must  be  some  reasonable 
connection  between  the  injury  suffered  and  the  employment  or  the 
conditions  under  which  it  is  pursued.42 

Deceased  was  employed  to  check  up  ice  shortages  on  drivers  and 
to  report  such  shortages  to  the  bookeeper.  Having  reported*  one 
driver  of  shortage  an  altercation  followed  and  deceased  was  shot, 
while  seated  at  his  desk,  by  the  employee  whom  he  had  reported. 
Affirming  an  award  in  claimant's  favor,  the  court  said:  "The  facts 

41.  Pekin  Cooperage  Co.  v.  Indus.  Comm.,  285  111.  31,  120  N.  E.  530,  17 
N.  C.  C.  A.  962,  3  W.  C.  L.  J.  26;    Heitz  v.  Ruppert    218  N.  Y.  148,  L.  R. 
A.  1917A,  482,  112  N.  E.  750,  14  N.  C.  C.  A.  226;    Stasmos  v.  Indus.  Comm., 

-  Okla.  — ,  (1921),  195  Pac.  762. 

42.  Jacquemin  v.  Turner  and  Seymour  Mfg.  Co.,  92  Conn.  382,  103  Atl. 
115    16  N.  C.  C.  A.  930,  1  W.  C.  L.  J.  934. 

714 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   293 

here  show  that  decedent  was  performing  a  character  of  service 
for  his  employer  which  might  any  time  cause  some  grievance  against 
him  on  the  part  of  the  other  employees  with  whom  his  duties  re- 
quired him  to  come  in  daily  contact,  so  that  when  they  were  so 
angered  at  him  or  when  under  the  influence  of  liquor  they  were 
liable  to  do  him  harm,  still  he  was  required  to  remain  at  his  place 
of  employment,  surrounded  by  these  dangers  which  finally  led  to 
and  produced  his  death.  Under  such  circumstances  it  may  very 
properly  be  said  that  the  accident  which  did  occur  was  a  risk 
reasonably  incident  to  decedent's  employment."43 

"An  employee  of  a  manufacturing  company  that  had  paid  its 
premiums  in  the  workmen's  compensation  fund,  was  ordered  by 
a  superior  to  procure  an  implement,  which  was  to  be  used  by  P.  to 
assist  such  superior.  The  implement  was  located  in  the  hands  of 
another  employee  who  had  equal  rights  with  P.  to  its  possession. 
Request  for  possession  was  refused.  An  argument  was  had  by 
the  parties.  No  effort  to  obtain  possession  by  violence  was  made 
by  P.,  nor  was  there  any  conduct  justifying  any  assault  by  the 
other  employee.  Thereupon  P.  was  violently  assaulted  by  such 
other  employee,  and  died  from  the  effects  of  the  assault.  It  was 
held  that  P.  was  injured  in  the  course  of  his  employment.44 

Deceased  was  an  employee  in  the  service  of  a  mining  company 
and  was  also  a  dupty  sheriff.  He  was  employed  by  the  mining  com- 
pany, among  other  things,  to  keep  order  about  its  premises  and  was 
killed  while  quelling  a  distrubance  in  one  of  its  shacks.  His  em- 
ployer sought  to  evade  liability  on  the  strenght  of  a  statute  which 
defined  the  term  "employee"  and  excludes  "any  person  holding 
an  appointment  as  deputy  clerk,  deputy  sheriff,  etc.,  but  receives 
no  compensation  from  the  county  or  municipal  corporation,  or 
the  citi/ens  thereof  for  the  services  of  such  duty."  The  section 
however  provides:  "That  such  last  exclusion  shall  not  deprive  any 
person  so  deputized  from  recourse,  against  any  private  person 
employing  him.  for  injury  occurring  in  the  course  of  and  arising 

43.  Polar  Ice  and  Fuel  Co.  v.  Mulray,  —  (Ind.  App.)  — ,  119  N.  E.  149, 
16  N.  C.  C.  A.  933,  1  W.  C.  L.  J.  965. 

44.  Indufc.  Comm.  of  Ohio  v.  Pora,  —  Ohio  — ,  125  N.  W.  662,  5  W.  C. 
L.  J.  580. 

715 


§  293  WORKMEN'S  COMPENSATION  LAW 

F 

out  of  such  employment."  "It  is  obviously  to  this  class  of  depu- 
ties that  the  excluding  clause  of  the  statute  refers  in  sharp 
contrast  to  the  provisions  of  the  including  clause.  It  is  in  the 
light  of  the  meaning  of  the  excluding  clause  that  the  proviso  in 
question  must  be  read.  So  read,  its  clear  effect  is  to  provide  that, 
where  a  deputy  performs  acts  which,  while  official  in  their  nature, 
are  advantageous  to  the  employer  and  directed  by  him,  not  inci- 
dentally merely,  but  as  part  of  the  duties,  prescribed  and  contem- 
plated in  the  contract  of  employment,  then  such  deputy  is  acting 
in  the  course  of  his  private  employment  within  the  meaning  of  the 
provisions  of  the  Workmen's  Compensation  Act.  Upon  this  view 
of  the  statute,  petitioner  cannot  escape  liability  to  compensate 
the  widow  for  the  death  of  Franklin  H.  Smith  on  the  plea  that  in 
performing  the  duties  incident  to  his  employment  he  was  also 
fulfilling  a  duty  to  the  county."45 

A  mill  superintendent,  was  shot  by  a  tresspasser  when  following 
express  instructions  of  a  superior  in  ordering  the  tresspasser  out 
of  the  mill.  It  was  held  that  he  was  injured  by  an  accident  arising 
out  of  and  in  the  course  of  the  employment.46 

Where  a  night  watchman,  employed  to  keep  maurauders  away, 
was  found  dead,  and  his  pistol,  from  which  a  shot  was  fired,  was 
found  under  a  plank  some  60  feet  «away,  the  court  held  that  the 
board  was  justified  in  holding  that  deceased  come  to  his  death 
by  the  act  of  some  maurauder  who  killed  him  because  he  was  a 
watchman,  not  because  of  a  personal  grudge,  and  therefore  the 
accident  arose  out  of  and  in  the  course  of  the  emplyment.47 

45.  Engels   Copper  Mining  Co.   v.   Indus.   Ace.   Comm.,  -  -    (Cal.)    — , 
(1919),  185    Pac.  182,  5  W.  C.  L.  J.  134. 

46.  In  re  Reithel,  222  Mass.  163,  109  N.  E.  951,  11  N.  C.  C.  A.  235; 
Nevich  v.  Delaware,  H.  W.  R.  Co.,  90  N.  J.  L.  228,  100  Atl.  234,  14  N.  C. 
C.  A.  232;     Munroe  v.  Williams,   Conn.—,  109  Atl.   129,   5   W.   C.  L.   J. 
655. 

47.  Mechanics  Furniture  Co.  v.  Indus.  Bd.  of  111.,  281  111.  530,  117  N. 
E.  986,  15  N.  C.  C.  A.  292;    Chicago  Dry  Kiln  Co.  v.  Indus.  Bd  of  111.,  276 
111.  556,  114  N.  E.  1009,  14  N.  C.  C.  A.  240;    Ohio  Building  Safety  Vault  Co. 
v.  Indus.  Bd.  of  111.,  277  111.  96,  115  N.  E.  149,  14  N.  C.  C.  A.  224;    Western 
Grain  and  Sugar  Products  Co.  v.  Pillsbury,  173  Cal.  135,  159  Pac.  423,  14 
N.  C.  C.  A.  236. 

716 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    293 

A  miner,  who  returned  to  the  mine  to  ascertain  whether  all  tho 
blasts  set  had  exploded,  was  shot  without  any  notice  while  leaving 
the  mine  by  a  guard  of  the  mine.  In  affirming  an  award,  the  court 
said:  "Upon  neither  of  these  grounds  can  this  award  be  annulled 
The  recognized  custom  of  miner's  carried  out  with  the  knowledge 
and  approval  of  the  mine  owners  (a  custom  which  manifest  1\ 
makes  for  the  protection  of  the  mine  owners  themselves,  in  lessen- 
ing the  liability  of  injury  from  unexploded  blasts  by  the  oncoming 
new  shift,  ignorant  of  the  conditions),  becomes  in  all  essenti;iU 
for  this  award  a  part  of  the  duty  of  the  miner  in  the  performance 
of  his  work,  and  his  injuries  thus  resulting  grew  out  of  and  oc- 
curred in  the  course  of  his  empolyment.  Upon  the  second  pro- 
position, while  unquestionably  it  was  a  heedless  and  reckless  thin*: 
for  the  guards  thus  to  have  shot  a  man  without  more  investigation 
as  to  his  character  and  intentions  than  was  here  shown  to  have 
taken  place,  yet,  every  legal  presumption  favoring  innocence,  the 
argument  will  not  be  sustained  that  these  guards  deliberately  per 
petrated  an  assault  to  commit  murder.  To  the  contrary,  it  will  be 
held  that  the  man  who  fired  the  shot,  himself  the  chief  guard, 
believed  that  the  circumstances  justified  him  in  so  doing,  and  that 
thus  he  was  acting  within  the  line  of  his  own  employment,  and 
under  this  view  Mason,  having  been  injured  by  the  negligent  per- 
formance of  an  act  within  the  general  scope  of  the  duties  of  the 
employee  inflicting  the  injury,  is  entitled  to  his  recovery."48 

An  employee  began  a  controversy  concerning  the  failure  of  an- 
other employee  to  reline  ladles,  and  as  a  result  he  was  injured. 
It  was  not  any  part  of  the  injured  employee's  duties  to  see  about 
the  relining  of  the  ladles,  he  should  have  reported  it  to  the  em- 
ployer. The  court  said:  "If  the  injury  can  be  seen  to  have  follow- 
ed as  a  natural  incident  of  the  work  and  to  have  been  contemplated 
by  a  reasonable  person,  familiar  with  the  whole  situation,  as  a  re- 
sult of  the  exposure  occasioned  by  the  nature  of  the  employment, 
then  it  arises  'out  of  the  emloyment.  But  it  excludes  an  injury 
which  cannot  fairly  be  traced  to  the  employment  as  a  contributing 
proximate  cause,  and  which  comes  from  a  hazard  to  which  the 

48.  Atolia  Min  Co.  v.  Indus.  Ace.  Com.,  175  Cal.  691,  167  Pac.  148,  15  N. 
C.  C.  A.  238. 

717 


§293  WORKMEN'S  COMPENSATION  LAW 

workman  would  have  been  equally  exposed  apart  from  the  em- 
ployment. The  causative  danger  *  *  *  must  be  incidental  to  the 
character  of  the  business,  and  not  independent  of  the  relation 
of  master  and  servant.  It  need  not  have  been  forseen  or  expected, 
but  after  the  event  it  must  appear  to  have  had  its  origin  in  a 
risk  connected  with  the  employment,  and  to  have  flowed  from  that 
source  as  a  rational  consequence."  It  was  held  that  the  injury 
did  not  arise  "out  of"  the  employment.49 

An  employee  was  injured  when  he  was  struck  by  a  stone 
thrown  by  another  boy,  who  was  also  engaged  in  throwing  stones 
from  coal  as  it  passed  by  on  a  belt,  and  oftentimes  the  stones 
were  thrown  for  the  purpose  of  attracting  the  attention  of  the 
other  employees.  The  county  judge  found  that  the  stone  was  mis- 
chievously thrown,  and  that  it  did  not  matter  whether  it  was  aim- 
ed at  the  injured  boy  or  not.  It  was  also  found  that  the  hazard 
of  being  struck  by  a  stone  was  peculiar  to  this  employment,  and 
that  the  accident  arose  out  of  the  employment.50 

"During  the  month  of  July,  1915,  Tibbs  was  employed  by  An- 
seth  as  a  bartender  in  the  latter 's  saloon  in  International  Falls. 
In  the  course  of  his  employment,  and  while  actually  engaged  in 
his  duties  as  bartender  in  the  saloon,  he  was  struck  in  the  right 
eye  by  a  heavy  drinking  glass  thrown  by  a  patron  of  the  saloon 
who  was  so  drunk  that  he  did  not  know  the  nature  of  the  act  or 
what  he  was  doing.  It  was  a  contention  of  relator  on  the  trial 
that  the  glass  was  thrown  by  Dubonis,  the  drunken  man,  in  a 
personal  altercation  between  him  and  the  bartender,  but  the  find- 
ing is  against  this  view,  and  the  evidence  is  such  that  we  must 
accept  as  true  the  version  of  the  matter  adopted  by  the  trial 
court."  In  holding  that  the  accident  arose  "out  of"  the  employ- 
ment, and  that  the  employment  necessarily  accentuated  the  nat- 
ural hazard  from  assault  to  which  all  men  are  subject,  the  court 
said;  it  "will  take  judicial  notice  that  the  position  of  bartender, 
patron,  or  spectator  in  a  saloon,  especially  in  one  situated  where 

49.  Union  Sanitary  Mfg.  Co.  v.  Davis,  63  Ind.  App.  548,  115  N.  E.  676, 
14  N.  C.  C.  A.  227. 

50.  Clayton  v.  Hardwick  Colliery  Co.,  Ltd.,  85  L.  J.  K.  B.  292,  (1915), 
11  N.  C.  C.  A.  236,  Rev'g  1914  W.  C.  &  Ins.  Rep.  343,  8  N.  C.  C.  A.  287. 

718 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    293 

rough  characters  are  apt  to  congregate  and  carouse,  is  quite  apt 
to  be  one  of  peculiar  danger.  Barroom  assaults  are  not  of  infre- 
quent occurrence."51 

Deceased  was  engaged  in  performing  the  duties  of  a  night  mar- 
shall  in  a  village  and  was  killed  while  trying  to  prevent  a  viola- 
tion of  the  speed  laws.  It  was  contended  that  because  deceased 
was  killed  while  enforcing  a  municipal  ordinance  he  did  not  come 
within  the  term  police  officer  as  construed  under  the  Workmen's 
Compensation  Act.  "It  is  considered  that  Voeck,  as  we  have 
shown,  was  in  fact  rendering  services  under  an  authorized  ap- 
pointment of  the  village  within  the  power  conferred  by  statute 
upon  the  marshal,  that  he  acted  in  the  capacity  of  a  temporary 
policeman  for  the  village  by  authority  of  law,  and-  that  the  de- 
ceased was  performing  policeman's  service  within  the  contempla- 
tion of  the  workmen's  compensation  act."52 

An  employee,  who  had  been  engaged  to  work  in  the  place  of 
two  Italians  was  struck  with  a  shovel  by  the  Italians,  while  he 
was  at  work,  because  of  an  ill  feeling  engendered  by  the  exchange 
of  men.  The  commission  held  that  the  assault  was  an  incident  of 
the  work,  and,  under  the  circumstances,  might  have  been  reason- 
ably anticipated,  and  therefore  arose  out  of  the  employment.  On 
appeal  this  finding  was  affirmed.53 

A  yard  foreman,  whose  duties  were  to  look  after  the  taking  on 
of  extra  men  and  the  sending  out  of  vans,  was  killed  by  an  extra 
man  whom  he  had  promised  a  van  on  a  certain  day,  but  who  ar- 
rived too  late  to  get  the  van  that  day.  There  was  evidence 
that  one  employed  to  look  after  these  extra  men,  who  were  a 
rough  lot,  was  exposed  to  the  extra  hazard  of  being  assaulted. 
Upon  this  showing  it  was  held  that  the  accident  arose  out  of  the 
employment.54 

51.  State  v.  District  Court  of  Koochiching  Co.,  134  Minn.  16,  158  N.  W. 
713,  14  N.  C.  C.  A.  242. 

52.  Village  of  Kiel  v.  Indus.  Corara.  of  Wis.,  163  Wis.  441,  158  N.  W.  68. 

53.  Harnett  v.  Thos.  J.  Stein  Co.,  169  App.  Div.  905.     Appeal  to  the 
Court  of  Appeals  dismissed  216  N.  Y.  101,  11  N.  C.  C.  238.  110  N.  E.  170. 

54.  Weekes  v.  Wm.  Stead,  Ltd.,  (1914),  W.  C.  *  Ins.  Rep.  434,  6  N.  C. 
C.  A.  1010. 

719 


§  293       •' :-1. <y-'     WORKMEN'S  COMPENSATION  LAW  - 

Where  a  teacher  in  a  district  school  was  beaten  as  the  result 
of  a  criminal  conspiracy  among  the  students,  it  was  held  that  the 
accident  arose  out  of  the  employment.55 

Where  a  cashier,  traveling  on  a  train  carrying  a  pay  roll,  was 
murdered,  and  robbed  of  the  money  he  was  taking  to  mines  to 
pay  off  the  workmen,  it  was  held  that  the  nature  of  his  employ- 
ment exposed  him  to  this  particular  risk,  and  therefore  the  acci- 
dent arose  out  of  the  employment.56 

Where  a  gamekeeper  was  beaten  by  poachers,  it  was  held  that 
the  accident  arose  out  of  the  employment.57 

An  employer  who  knew  of  the  vicious  tendencies  of  an  em- 
ployee when  intoxicated,  permitted  him  to  work  with  other  em- 
ployees while  in  an  intoxicated  condition.  It  was  held  that  the 
employer  was  liable  for  injuries  sustained  by  an  employee  who 
was  assaulted  by  this  employee  while  intoxicated  during  work 
hours.58 

A  foreman  of  a  section  gang  was  assaulted  when  he  attempted 
to  compel  a  workman  to  use  a  shovel  in  a  particular  manner.  It 
was  held  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment.89 

A  fight  began  between  a  shovel  engineer  and  a  negro.  The  negro 
struck  the  engineer  over  the  head  with  an  iron,  and  another  em- 
ployee, fearing  the  negro  would  kill  the  engineer,  hit  him  in  the 
mouth  with  his  fist  and  thereby  lacerated  his  hand,  which  later 
became  infected.  It  was  held  that  the  claimant  had  gone  outside 
of  the  scope  of  his  employment  in  taking  part  in  the  fight  and 
assumed  the  risk  incidental  thereto.60 

Where  a  police  officer  was  intentionally  killed  by  a  person  he 
attempted  to  arrest,  recovery  could  not  be  had  where  the  statute  exr 
eluded  injuries  resulting  from  the  intentional  acts  of  another. 

55.  Trim  Joint  District  School  v.  Kelly,  (1914),  W.  C.  &  Ins.  Rep.  359, 
136  L.  T.  J.  605,  6  N.  C.  C.  A.  1010. 

56.  Nisbet  v.  Rayne  and  Burn,  2  K.  B.     689,  3  N.  C.  C.  A.  268. 

57.  Anderson  v.  Balfour,  (1910),  2  Ir.  Rep.  497,  3  N.  C.  C.  A.  275. 

58.  In  re  McNicol,  215  Mass.  497,  4  N.  C.  C.  A.  522,  102  N.  E.  697,  L. 
R.  A.  1916A,  306. 

59.  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398. 

60.  In  re  G.  M.  Armstead,  Op.  Sol.  Dep.  C.  &  L.  pg.  240. 
720 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPOYMENT.        §   293 

"The  plaintiffs  in  error,  claimants  before  the  commission,  contend, 
in  effect,  that  the  above-quoted  clause  of  section  8  of  the  statute 
of  1915  should  not  be  literally  construed,  but  that  the  words  'in- 
jury intentionally  inflicted  by  another'  should  be  interpreted  to 
refer  only  to  an  injury  intentionally  inflicted  by  another  for  rea- 
sons personal  to  the  assailant,  and  not  to  relate  to,  or  include, 
any  injury  which,  although  inflicted  intentionally  by  a  third  per- 
son, was  one  caused  by  the  employment,  or  arose  as  the  result 
of  a  peril  incident  to  the  employment  as  in  the  instant  case.  How- 
ever much  the  construction  contended  for  would  result  in  harmo- 
nizing section  8  with  the  general  purpose  of  the  Workmen's  Com- 
pensation Act,  nevertheless  the  contention  cannot  be  sustaied.  The 
clause  and  phrase  in  question  is  clear  and  explicit,  and  must  be 
enforced  according  to  its  plain  meaning.  As  said  in  Hause  v.  Rose, 
6  Colo.  26:  'We  cannot  as  a  court,  supply  omissions,,  nor  make 
law  to  fit  an  exceptional  case.  *  *  *  The  statute,  being  ex- 
plicit, does  not  admit  of  interpretation  beyond  its  express  letter, 
and  must  be  administered  as  we  find  it.'  "61 

Where  homicide  results  from  a  quarrel  wherein  personal  mat- 
ters as  well  as  matters  pertaining  to  the  employment  have  entered 
into  the  altercation,  a  finding  that  death  was  due  to  an  injury  aris- 
ing out  of  and  in  the  course  of  the  employment  was  warranted.62 

Injuries  sustained  by  a  strikebreaker  when  assulted  by  a  striker 
after  work  hours  away  from  the  premises  though  in  the  company 
of  the  superintendant,  are  not  compensable  as  they  did  not  arise 
out  of  the  employment  despite  the  fact  that  at  the  time  of  hiring, 
the  superintendant  promised  him  that  they  would  care  for  him 
and  that  he,  the  superintendant,  would  be  with  him  after  work 
hours." 

Where  an  employee  accidently  struck  a  foreman  with  a  wheel- 
barrow, while  pursuing  his  regular  duties,  and  was  assaulted  by 

61.  Hellburg  v.  Town  of  Louisville,    (Colo.),    |1919),   180  Pac.  751.  4 
W.  C.  L.  J.  152. 

62.  American  Smelting  &  Refining  Co.  v.  Cassil,  --  Neb.  — ,    (1920), 
175  N.  W.  1021,  5  W.  C.  L.  J.  552;    Hincbuk  v.  Swift  &  Co.,  —  Minn.  — . 
(1921),  182  N.  W.  622. 

63.  Kourke's  Case,  —  Mass.  — ,  (1921),  129  N.  K.  603, 

721 

W.  C.— 46 


§>  294  WORKMEN'S  COMPENSATION  LAW  ' 

the  foreman,  the  injuries  sustained  arose  out  of  the  employment.6* 
Where  a  private  in  the  quartermaster's  corps  shot  the  pack- 
master  as  the  result  of  a  quarrel  over  the  killing  of  a  dog,  com- 
pensation was  allowed.65 

§  294.  Assault  Resulting  From  Controversies  Not  Connected 
With  Nor  Pertaining  to  the  Employment. — A  superintendant  of  an 
apartment  house  was  injured  by  an  assault  committed  upon  him 
by  a  tenant  of  the  building,  as  the  result  of  a  quarrel  arising  from 
insults  offered  the  tenant's  wife.  The  court  held  that  the  acci- 
dent did  not  arise  out  of  the  employment,  assaults  being  accidents 
"arising  out  of  the  employment"  only  when  the  employee  is  en- 
gaged in  the  master's  business.66 

The  claimant  was  shot  by  a  negro  janitor,  and  it  appeared  that 
the  claimant,  as  foreman  of  the  composing  room,  had  a  right  to 
give  orders  pertaining  to  the  janitor  work  of  that  room,  and,  if 
the  orders  were  not  obeyed,  to  report  such  violation  to  the  employ- 
er. Claimant  had  the  day  prior  to  the  shooting  reported  the  jani- 
tor for  refusal  to  obey  orders.  The  janitor  testified  that  claimant 
did  not  want  him  to  work  there,  and  that  the  foreman  of  the  jani- 
tor work  had  told  claimant  to  leave  him  alone,  and  that  he  shot 
claimant  because  claimant  tried  to  shoot  him.  Affirming  a  determi- 
nation of  the  board  denying  compensation,  the  court,  said  that, 
"the  test  to  be  applied  in  assault  cases  was  whether  the  attack 
grew  out  of  the  employment,  out  of  the  work  or  was  one  of  personal 
vengeance."  The  power  to  determine  from  the  evidence  whether 
the  assault  grew  out  of  the  employment  is  vested  in  the  board,  and 
the  burden  of  proof  that  the  accident  arose  out  of  the  employment, 
and  that  the  person  causing  the  assault  was  such  a  person  as  the 
employer  should  not  have  hired,  rests  upon  the  claimant.  The 

64.  American    Steel   Foundries   v.    Melinik,   --   Ind.   App.   — ,    (1920) 
126  N.  E.  33,  5  W.  C.  L.  J.  517. 

65.  In  re  Wm.  H.  Daley,  3rd  A.  R.  U.  S.  C.    C.  178. 

66.  Muller  v.  H.    &  A.  Cohen,  Inc.,  186  App.  Div.  845,    174  N.    Y.   S. 
736,  (1919),  18  N.  C.  C.  A.  1050,  3  W.  C.  L.  J.  649;    Metropolitan  Redwood 
Lbr.  Co.  v.  Indus.  Ace.  Comm.,  —  Cal.  — ,  182  Pac.  315,  4  W.  C.  L.  J.  479. 

722 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    294 

finding  of  the  board  which  was  supported  by  the  evidence  will  not 
be  disturbed.87  ' 

A  chauffeur  was  sent  out  to  drive  a  passenger  to  a  station,  and 
after  arriving  at  the  station  and  finding  that  the  train  was  late, 
he  proceeded  to  another  point  for  his  own  and  his  passenger's 
convenience.  While  driving  beyond  his  original  destination,  he 
was  shot  by  the  passenger,  who  suddenly  became  insane.  In  re- 
versing an  award  the  court  held  that  the  accident  did  not  arise 
out  of  the  employment,  for  the  employee  left  the  employment  for 
purposes  of  his  own.68 

A  school  district  employed  a  young  woman  teacher  for  a  one- 
room  school  in  a  densely  wooded  and  sparsely  settled  part  of  the 
country.  On  her  way  to  her  boarding  house,  after  her  day's  work 
at  the  schoolhouse  was  done,  and  when  off  the  schoolhouse 
grounds,  she  was  assaulted  by  an  unknown  man  for  the  gratifi- 
cation of  his  passions,  and  as  a  part  of  the  transaction  she  was 
shot  and  the  sight  of  one  eye  was  destroyed.  The  Workmen's 
Compensation  Act  (Gen.  St.  1913,  Sec.  8195,  et  seq.)  gives  com- 
pensation for  personal  injury  "caused  by  accident,  arising  out  of 
and  in  the  course  of  employment."  It  does  not  cover  workmen 
except  .while  engaged  in  or  about  the  premises  where  their  work 
is  done  or  their  service  requires  their  presence;  and  it  excludes 
"an  injury  caused  by  the  act  of  a  third  person  or  fellow  employee 
intended  to  injure  the  employee  because  of  reasons  personal  to 
him,  and  not  directed  against  him  as  an  employee,  or  because  of 
his  employment."  Without  determining  whether  the  injuries  to 
the  teacher  arose  in  the  course  of  the  employment  it  was  held  that 
they  were  not  caused  by  accident  arising  out  of  the  employment, 
and  that  they  were  not  compensable  under  the  Compensation  Act." 

Two  employees,  engaged  in  skylarking,  were  stopped  by  the 
foreman  and  sent  back  to  work,  and  later  one  hit  the  other  on  the 

67.  Marshall  v.  Banker-Vawter    Co.,    206  Mich.    466,  173  N.    W.  191, 
(1919),  18  N.  C.  C.  A.  1051.  4  W.  C.  L.  J.  399. 

68.  Central    Garage    of  La  Salle  v.    Indus.  Comm..  286    111.  291,  121 
N.  E.  687,   (1919),  18  N.  C.  C.  A.  1052,  3  W.  C.   L.  J.  428. 

69.  State  ex  rel.  Common  School  District  No.  1  in   Itasca  County  v. 
District  Court  of  Itasca  Co.,  140  Minn.  470,  168  N.  W.  655,  17  N.  C.  C.  A. 
937,  2    W.    C.  L.  J.    661. 

723 


§  294  WORKMEN'S  COMPENSATION  LAW 

side  of  the  head  with  a  pick  and  killed  him.  The  court,  in  re- 
versing an  award,  held  that  the  employer  is  not  charged  with 
liability  for  the  wrongful  and  atrocious  act  of  a  servant  entirely 
outside  the  scope  of  his  employment;  that  the  compensation  act 
did  not  provide  an  insurance  for  a  workman  against  every  hap- 
pening to  him  while  engaged  in  his  employment,  but  only  against 
accidents  arising  out  of  and  in  the  course  of  his  employment ;  an 
act  done  by  a  fellow  employee  entirely  outside  the  scope  of  his 
employment,  was  not  such  an  accident  so  arising.70 

A  paperhanger  refused  to  strike  when  asked  by  members  of  a 
rival  union,  and  as  a  result  was  assaulted  and  severely  injured. 
The  court  in  a  criminal  proceeding  suspended  sentence  provided 
the  wrongdoers  would  pay  the  injured  employee  $100.00  at  once, 
and  $15  per  week  during  disability,  and  to  guarantee  him  earn- 
ings of  at  least  $15  per  week  after  he  should  be  able  to  go  to  work. 
Later  the  paperhanger  brought  action  under  the  compensation 
act  and  the  court  refused  to  allow  a  reduction  for  the  amount 
recovered  from  the  wrongdoers.  The  Appellate  court  held  that 
this  was  erroneous  in  that  under  the  statute,  a  person  injured 
through  the  negligence  or  wrongdoing  of  another  not  in  the  same 
employ,  may  elect  as  to  which  remedy  he  will  pursue,  and  if  he 
proceeds  against  the  wrongdoer  the  employer  is  liable  only  for 
the  difference  between  the  amount  recovered  and  the  amount  due 
under  the  compensation  act,  and  in  the  event  that  he  elects  to 
take  action  under  the  compensation  law  he  must  assign  his  rights 
against  the  wrongdoer  over  to  his  employer  or  insurance  carrier.71 

In  denying  that  the  accident  arose  out  of  the  employment 
where  two  employees  engaged  in  controversy  and  one  assaulted 
the  other,  the  court  said:  "Brill  and  Lee  had  no  connection  with 
or  authority  over  each  other  in  the  discharge  of  their  respective 
duties,  and  there  is  no  proof  to  show  that  the  altercation  between 

70.  Mountain  Ice  Co.  v.  McNeil,  91   N.  J.  L.  528,  103  Atl.  184,    16  N. 
C.  C.   A.  933.  1  W.   C.  L.  J.   1102;    Rev'g,  —  N.  J.   L.  — ,    103  Atl.  912; 
Hulley  v.  Moosebrugger,  88  N.  J.  L.  161,  95  Atl.  1007,  L.  R.  A.  1916C,  1203; 
Walthefs  v.  American  Paper  Co.,   89  N.  J.  L.  732,  99  Atl.  263. 

71.  Dietz  v.  Solomnwitz,  179  App.  Div.  560,  166  N.  Y.  S.  849,  16   N.  0. 
C.  A.  413. 

724 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    294 

them  grew  out  of  the  manner  of  performing  their  work  or  had 
any  connection  with  it.  It  does  not  appear  that  Lee  was  present 
when  Brill  spoke  to  Ashford  about  the  bread.  As  Ashford  and 
Brill  were  going  to  the  manager's  office  Brill  and  Lee  met,  there 
\\;is  a  sudden  altercation  between  them,  and  Lee  struck  Brill.  It 
is  not  sufficient  that  an  accidental  injury  occur  in  the  course  of 
the  employment  but  it  must  arise  out  of  the  employment.  An 
accident  to  be  within  the  Workmen's  Compensation  Act  must 
have  had  its  origin  in  some  risk  of  the  employment.  There  is 
no  proof  that  the  difficulty  between  Lee  and  Brill  had  its  origin 
in  or  any  connection  with  their  employment.  The  proof  is  as 
consistent  with  the  theory  that  it  had  no  such  origin  or  connec- 
tion, but  resulted  from  a  previous  feud  or  ill  feeling  between  the 
two  men,  as  it  is  with  the  theory  that  the  quarrel  or  altercation 
grew  out  of  the  manner  of  conducting  the  business  in  which  they 
were  employed.  It  was  incumbent  upon  the  defendant  in  error 
to  prove  the  accident  arose  out  of  the  employment  by  direct  and 
positive  evidence,  or  by  evidence  from  whi«h  such  inference  could 
be  fairly  and  reasonably  drawn.  Ohio  Building  Vault  Co.  v.  In- 
dustrial Board,  277  111.  96,  .115  N.  E.  149;  Wisconsin  Steel  Co.  v. 
Industrial  Com.,  288  111.  206,  123  N.  E.  295.  Liability  cannot  rest 
upon  imagination,  speculation,  or  conjecture,  upon  a  choice  be- 
tween two  views  equally  compatible  with  the  evidence,  but  must 
be  based  upon  facts  established  by  evidence  fairly  tending  to 
prove  them.  Peterson  &  Co.  v.  Industrial  Board,  281  111.  326,  117 
N.  E.  1033."" 

An  employee  was  accidentally  struck  by  a  fellow  employee  and 
became  angry  and  kicked  his  fellow  employee,  whereupon  the  lat- 
ter shoved  him,  and  he  sustained  injuries  which  finally  resulted  in 
his  death.  After  stating  that  according  to  the  facts  found  deceased 
w;is  the  aggressor,  the  court,  in  reversing  an  award,  said:  "The 
injury  was  not  a  peril  of  the  service  nor  reasonably  incident  there- 
to. It  arose  wholly  from  a  voluntary  act  of  Griffin  (deceased) 

72.  Edelweiss  Gardens  v.  Indus.  Conirn.,  290  111.  459,  (1919),  125  N.  E. 
260,  5  W.  C.  L.  J.  176;  Romerz  v.  Swift  ft  Co.,  —  Kan.  — ,  (1920),  89 
Pac.  923,  6  W.  C.  L.  J.  162;  In  re  Lester  C.  Hammond,  2nd  A.  R.  U.  S.  C. 
C.  279;  In  re  John  L.  Sulllval,  2nd  A.  R,  U.  S.  C.  C.  279. 

725 


§  294  WORKMEN'S  COMPENSATION  LAW 

entirely  unnecessary,  and  not  in  the  protection  or  advancement  of 
the  master's  interest  nor  connected  therewith.  It  was  nothig  more 
or  less  than  the  gratification  of  his  personal  feeling  of  animosity. 
No  reasonable  inference  can  be  drawn  which  legitimately  or  fairly 
demonstrates  that  the  injury  to  Griffin  was  an  incident  of  his 
work.  There  was  no  causal  connection  between  the  work  and  the 
injury  which  resulted  from  the  independent  and  affirmative  and 
unjustifiable  act  of  Griffin.  This  seems  to  have  been  clearly  an 
injury  which  did  not  arise  'out  of  the  employment.  It  was  rather 
outside  of  the  employment  and  one  which  grew  out  of  a  situation 
inaugurated  by  the  injured  employee  himself  for  his  individual 
purpose. ' ' 73 

A  delivery  man  and  collector  for  a  brewery  was  shot  one  Satur- 
day night  while  making  a  delivery.  The  assailant  and  his  motive 
for  shooting  were  unknown.  In  reversing  an  award,  the  court 
said:  "If  the  shooting  had  been  for  the  purpose  of  robbery  then 
it  could  be  said  to  be  incidental  to  the  employment  but  since  there 
was  no  motive  shown,  no  robbery  having  been  commited  the  shoot- 
ing might  have  been  in  revenge  for  a  past  wrong  or  something 
foreign  to  the  employment.  There  is  nothing  in  the  evidence  to 
show  that  deceased's  employment  necessarily  exposed  him  to  the 
injury  incurred,  therefore  the  accident  did  not  arise  out  of  the 
employment. ' ' 74 

An  employee,  engaged  as  a  night  watchman,  was  shot  by  a 
policeman  when  he  was  mistakenly  suspicioned  for  being  a  yegg- 
man,  who  had  recently  robbed  a  post  office.  In  holding  that  his 
death  did  not  result  from  any  special  risk  incident  to  the  per- 
formance of  his  duties  as  a  night  watchman,  the  court  said: 
"There  was  no  evidence  that  this  property  ever  had  been  injured 
by  wrongdoers,  or  that  from  its  character  or  location  it  was 
especially  exposed  to  theft  or  harm  at  the  hands  of  the  trespassers. 
He  was  not  shot  while  protecting  his  employer's  property  from 
thieves.  At  the  time  of  this  accident  the  property  was  in  no  way 

73.  Griffin  v.  A.  Robertson  &  Son,  176  N.  Y.  App.  Div.  6,  162  N.  Y.  S. 
313,   14  N.  C.   C.  A.229. 

74.  Schmoll  v.  Weisbrod  and  Hess  Brg.  Co.,  89   N.  J.  L.   150,  97  Atl. 
723,  14  N.  C.  C.  A.  233. 

726 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    294 

threatened,  nor  did  Harbroe  suppose  it  was.  And  he  was  not 
fired  upon  because  he  was  the  watchman  in  charge.  The  injury 
might  quite  as  well  have  been  suffered  by  any  person  who  happened 
to  be  in  the  locality,  whether  employed  by  the  construction  com- 
pany or  not.  Further,  although  Harbroe  mistakenly  believed  that 
the  two  approaching  figures  were  'yeggman,'  they  were  in  fact 
an  officer  of  the  law  and  his  assistant,  who  were  in  the  performance 
of  their  duty,  seeking  to  apprehend  the  men  who  recently  had 
robbed  the  post  office.  The  injury  they  inflicted  was  the  result 
of  an  unfortunate  misapprehension  on  their  part  (to  which  liar- 
broe  himself  unwittingly  contributed),  and  cannot  reasonably  be 
said  'to  have  had  its  origin  in  a  hazard  connected  with  the  employ- 
ment and  to  have  flowed  from  that  source  as  a  rational  consequence, 
*  *  *  There  was  no  evidence  to  support  the  finding  that  the 
employee's  injury  'arose  out  of  his  employment."75 

Under  the  Nebraska  Compensation  Act  an  employee,  who  has 
been  assaulted  either  in  anger  or  in  play,  and  sustains  an  injury, 
the  injury  sustained  does  not  arise  out  of  the  employment.76 

Where  a  strike  breaker  was  injured  by  stones  thrown  by  strikers, 
it  was  held  that  the  accident  did  not  arise  out  of  the  employment.77 

An  agreement  with  an  employer  to  be  protected  against  injury 
from  strikers  enlarges  the  responsibility  of  the  employer  pertain- 
ing to  assaults,  but  does  not  affect  the  scope  of  the  compensation 
act.78 

Where  an  employee  is  injured  by  being  struck  by  an  iron  thrown 
by  another  employee,  while  neither  is  at  work,  the  accident  does 
not  arise  out  of  the  employment.79 

75.  In  re  Harbroe,  223  Mass.  139,  111  N.  E.  709,  11   N.  C.  C.  A.  246; 
Heideman  v.  American  District  Telegraph  Co.,  183  N.  Y.  S.  924,    (1920), 
6  W.  C.  L.  J.  568. 

76.  Pierce  v.  Boyer-Van  Kuran  Lbr.  &  Coal  Co.,  99  Neb.  321,   156  N. 
W.  509,  L.   R.  A.  1916D,  970. 

77.  Murray  v.  Denholm  &  Co.,  (1911).  S.  C.  1087,  5  B.  W.  C.  C.  496. 

78.  Poulton   v.   Kelsall,    |1912),    2   K.   B.    131,   5    B.   W.   C.   C.   318,   4 
N.  C.  C.  A.  947. 

79.  Armitage  v.  Lancashire  &  N.  Y.  Ry.,   (1902),  K.  B.  178,  6  N.  C.  C. 
A.  1024. 


727 


§  294  WORKMEN'S  COMPENSATION  LAW 

Where  an  employee  was  killed  when  interfering  in  a  fight  be- 
tween his  employer  and  another,  with  the  intention  of  defending 
his  employer,  the  accident  does  not  arise  out  of  the  employment.80 

A  cook  was  injured  while  trying  to  defend  herself  from  a  man 
who  came  out  of  the  bar  room  to  kiss  her.  It  was  held  that  the 
injury  did  not  arise  out  of  the  employment.81 

An  employee  was  injured  by  a  blow  from  a  hatchet  in  the  hand 
of  his  employer,  intentionally  inflicted.  It  was  held  that  the  acci- 
dent did  not  arise  out  of  the  employment.82 

Under  the  Federal  Act  an  employee  injured  by  an  assault  from 
his  employer,  is  injured  by  an  accident  arising  out  of  the  employ- 
ment.83 

Wilful  intention  to  injure  another  is  a  bar  to  compensation  un- 
der the  New  York  act.  So  where  an  outsider  came  visiting  among 
the  employees  of  a  brewery  during  work  hours,  and  hung  around 
and  talked  to  the  fireman  of  the  engine,  the  engineer  becoming 
vituperative,  seized  a  wrench  and  attacked  the  visitor,  who  knock- 
ed him  down,  it  was  held  that  the  accident  did  not  arise  out  of  the 
employment,  but  was  occasioned  by  the  willful  intention  of  the 
employee  to  injure"  the  outsider.84 

A  night  watchman  was  struck  on  the  head  and  killed  by  a  fel- 
low employee,  whose  purpose  in  doing  so  was  robbery.  In  re- 
versing an  award,  the  court  said:  "While  the  injury  occurred 
in,  it  did  not  arise  out  of  the  employment  since  the  accident  was 
in  no  way  connected  with  decedent's  employment.  The  killing 
was  for  a  purpose  entirely  independent  of  the  employment,  and 
deceased  would  be  subject  to  the  same  risk  whether  acting  within 
his  employment  at  the  time  of  the  accident  or  not."85 

80.  Collins  v.  Collins,  (1907),  2  Ir.  Rep.  104,  41  Ir.  L.  T.  3,  6  N.  C.  C. 
A.   1025. 

81.  Murphy  v.  Berwick,  2  B.  W.  C.  C.  103,  (1909),  6  N.  C.  C.  A.  1025. 

82.  Blake  v.  Head,  106  L.  T.  822,  5  W.  C.  C.  303,  (1912),  W.  C.  R.  198, 
6  N.   C.  C.  A.  1025;    Gregory  v.  Chapman,   38   N.   J.  L.  J.  363. 

83.  In  re  Flemming's  Op.  Sol.  Dep.  C.  &  L.  187. 

84.  Ludwig  v.  Grohs  Sons,  181  N.  Y.  App.  Div.  907,  167  N.  Y.  S.  1111. 

85.  Walter  v.  American   Paper  Co.,  89  N.  J,  L.  732,  99    Atl.  263,    14 
N.  C.  C.  A.  239,  Rev'g.  98   Atl.   264;     Mitchinson  v.   Day  Bros.,  6  B.  W. 
C.  C.  190,  6  N.  C.  C.  A.  1024. 

728 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    294 

The  claimant  was  assisting  his  brother  to  erect  a  house,  and 
was  told  to  allow  no  building  material  to  be  unloaded  on  the  lot, 
that  was  intended  for  other  houses  which  were  being  built  near 
by.  A  teamster  drove  up  with  a  load  of  brick  and  began  unload- 
ing. The  claimant  protested,  and  a  fight  ensued  in  which  the 
brother  came  off  victorious.  On  the  following  day  the  teamster 
returned  with  a  reserve  force  intending  to  get  revenge.  The 
claimant's  brother  was  there  that  day  and  attempted  to  prevent 
the  material  from  being  placed  on  his  lot  and  as  a  result  a  fight 
ensued.  The  claimant  went  to  his  assistance,  and  while  keeping 
off  the  outsiders  was  struck  in  the  eye  by  a  missile  thrown  by 
one  of  the  gang.  The  court,  in  denying  that  the  accident  arose 
out  of  the  employment,  said,  his  presence  at  the  scene  of  the 
fighting  was  in  no  way  connected  with  his  employment.  The  mas- 
ter himself  was  there  to  protect  his  own  property,  and  the  brother 
rendered  assistance  solely  in  the  interests  of  the  master's  safety, 
this  may  have  been  commendable,  but  was  not  a  satisfactory  an- 
swer to  the  question  of  what  connection  his  acts  had  with  his  em- 
ployment. Had  he  remained  on  the  ba«k  porch  where  he  was  at 
work  he  would  not  have  been  injured,  therefore  the  accident  did 
not  arise  out  of  the  employment.88 

An  employee  while  at  work  was  assaulted  by  a  stranger,  who 
was  intoxicated.  The  court  held  that  the  claim  could  not  be  ex- 
cluded merely  because  the  accident  was  caused  by  a  third  person, 
even  though  the  act  was  felonious,  if  at  the  time  the  workman 
sustained  the  injury  he  was  exposed  thereto  by  the  nature  of  his 
employment.  If  the  burns  and  bruises  directly  resulted  from  the 
accident,  that  is,  a  fall  which,  by  the  nature  of  the  applicant's 
employment,  was  attended  with  special  risk  and  dangers  of  such 
consequences  as  happened  to  applicant,  the  case  was  such  as  to 
show  that  it  arose  out  of  the  employment,  and  it  mattered  not 
that  the  fall  was  caused  by  something  not  arising  out  of  the  em- 
ployment, such  as  an  unwarranted  blow  by  an  intoxicated  stran- 
ger." 

86.  Clark  v.  Clark,  189  Mich.  652,  155  N.  W.  507.  11  N.  C.  C.  A.  240. 

87.  Macfarlane    v.    Shaw    (Glasgow,    Ltd.,    (1915),    Ct.    of    Seas.    Cas. 
273,  (1915),  W.  C.   &  Ins.  Rep.  32,  11  N.  C.  C.  A.  242. 

729 


§  294  WORKMEN'S  COMPENSATION  LAW 

"The  question  presented  by  this  appeal  is  whether  the  injury 
arose  out  of  the  employment.  Krasnoger  Bros,  were  employed 
in  constructing  a  building  in  the  city  of  New  York.  The  claim- 
ant was  employed  by  them  as  a  carpenter.  Workmen  in  the  em- 
ploy of  other  employers  were  working  on  the  same  building.  On 
August  10,  1918,  during  working  hours,  claimant  entered  a  wash- 
room and  found  a  workman  in  the  employ  of  the  general  con- 
tractor tied  hand  and  foot  and  fastened  to  the  floor.  He  asked 
claimant  to  untie  him,  which  the  claimant  did.  Some  workmen 
not  in  the  employ  of  claimant's  employers  were  angered  at  claim- 
ant's action,  and  seized  claimant  and  said  they  were  going  to  tie 
him  down;  but  claimant  successfully  resisted  them.  Before  the 
altercation  had  entirely  subsided,  the  structural  superintendent, 
having  general  charge  of  the  work,  struck  the  claimant  several 
times  with  a  saw,  inflicting  injuries  for  which  claimant  demands 
compensation.  The  State  Industrial  Commission  awarded  com- 
pensation against  the  employers,  from  which  an  appeal  is  taken. 
The  claimant  had  been  handling  chalk,  and  went  to  the  wash- 
room just  before  the  closing  of  the  day's  work  to  wash  his  hands. 
It  would  appear,  therefore,  that  the  claimant  was  in  the  dis- 
charge of  his  duties,  and  in  the  course  of  his  employment.  The 
employers,  in  their  report  of  the  injury,  say  that  the  employee 
was  doing  his  regular  work  at  the  time  he  was  injured.  The 
claimant  had  been  doing  a  merciful  act  to  the  employee  in  releas- 
ing him.  There  is  evidence  that  the  attempt  to  tie  the  claimant 
had  ceased,  and  that  he  was  struck  by  the  foreman  while  leaving. 
This  brings  the  case  within  the  decision  in  Carbone  v.  Loft,  219 
N".  Y.  37,  114  N.  E.  1062,  in  which  the  workman  was  struck  three- 
quarters  of  an  hour  after  the  verbal  altercation.  The  award  of 
compensation  was  affirmed.  In  the  Matter  of  Waters  v.  Taylor 
Co.,  218  N.  Y.  248,  113  N.  E.  727,  L.  R.  A.  1917A,  347,  the  court 
held  that  an  employee  was  acting  within  the  scope  of  his  employ- 
ment, so  as  to  be  entitled  to  the  benefit  of  the  act,  when  he  left 
the  strict  line  of  his  employment  in  the  attempt  to  rescue  another 
workman,  technically  in  the  employ  of  an  independent  contractor, 
from  a  danger  which  threatened  his  life,  and  which  cost  the  life 
of  the  intercessor.  The  court  held  that  it  must  have  been  within 

730 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    294 

the  reasonable  anticipation  of  this  employer  that  his  eraplo\  •  •  •> 
would  do  just  as  Waters  did  if  the  occasion  arose."88 

Where  an  auto  salesman  went  for  a  ride  at  the  invitation  of  a 
local  dealer,  and  was  accidently  shot  by  members  of  a  posse,  when 
mistaken  for  auto  thieves,  it  was  held  that  the  injury  to  the  sales- 
man was  due  to  an  accident  arising  out  of  the  employment,  and 
not  due  to  an  assault  directed  against  him  by  third  parties  for 
PC  rsonal  reasons.80 

A  recent  New  York  decision  holds,  that  ;  where  an  abattoir 
worker,  resenting  a  sudden  assault  by  a  coemployee  who  threw  a 
piece  of  flesh  at  him  used  the  flesh  in  striking  another  employee 
whom  he  erroneously  believed  to  be  the  assailant,  the  latter  in  turn 
kicked  the  claimant,  the  injuries  sustained  as  a  result  of  the  kick 
arose  out  of  the  employment.  The  court  said:  "In  the  instance 
case  the  claimant  was  not  the  aggressor,  but  was  attending  to  his 
master's  business  on  his  master's  premise  at  the  time  of  the  as- 
sault. He  was  waiting  to  "lug"  away  viscera,  and  while  waiting 
there  for  his  master's  benefit  and  in  the  work  for  which  he  was  em- 
ployed was  assaulted.  In  his  excitement  he  defended  himself  by  a 
counter  attack  upon,  as  it  seems,  another  employee,  with  the  result- 
ing injury  to  himself.  He  did  not  initiate  the  "melee,"  but  was  de- 
sirous only  of  transacting  his  master's  business  in  peace.  This 
fellow  employee  had  previously,  he  claimed,  interfered  with  his 
working.  The  Industrial  Commission  has  found  that  claimant  was 
engaged  in  the  regular  course  of  his  employment  when  he  was 
kicked.  This  is  a  finding  of  fact.  The  claimant  was  thrown  on 
the  defensive  striking  Dudler  with  the  piece  of  flesh,  who  kicked 
him.  If  the  claimant  was  right  in  assuming  that  Dudler  was  his 
assailant,  his  striking  back  would  have  been  the  natural  result  of 
the  act,  and  it  might  then  well  be  said  that  claimant  was  within 
the  act. 

"The  Workmen's  Compensation  Law  (Consol.  Laws,  c.  67) 
should  be  construed  broadly.  Compensation  under  it  does  not  de- 

88.  Marino  v.  Krasnoger  Bros.,    (Dec.  29,  1919),  179  N.  Y.  S.  314,  5 
W.  C.  L.  J.  437. 

89.  Wold  v.  Chevrolet  Motor  Co..  —  Minn.  — .  (1920),  179  N.  W.  219. 
6  W.  C.  L.  J.  699. 

731 


§  294  WORKMEN'S  COMPENSATION  LAW 

pend  on  any  fault  of  the  master  or  any  negligence  of  the  servant. 
The  law  was  enacted  to  do  away  with  the  defenses  which  had  gov- 
erned the  law  of  master  and  servant.  The  question  in  each  case  aris- 
ing under  the  Workmen's  Compensation  Law  is,  "Was  the  injury 
received  while  engaged  in  the  master's  business?"  If  the  servant 
had  left  his  employment  and  was  willfully  pursuing  designs  of  his 
own,  he  would  not  be  entitled  to  compensation.  The  man  who 
initiates  an  assault  is  doing  a  willful  thing,  but  this  cannot  be 
said  of  the  man  who,  surprised  by  physical  assault  or  insult,  re- 
acts and  in  self-protection  strikes  another.  His  act  is  as  involun- 
tary as. that  of  closing  the  eye  to  avoid  dust,  the  same  action  and 
reaction  which  the  law  recognized  in  its  definition  of  manslaughter. 

"Danger  of  employment  in  modern  business  comes  from  the  gath- 
ering together  of  great  and  dangerous  machines.  There  is  a  line 
of  cases  which  hold  that  if  an  employer  continues  to  employ  a 
man  of  dangerous  temper  after  he  has  become  aware  of  the  same, 
and  he  inflicts  injury  on  a  fellow  workman,  the  workman  will  be 
entitled  to  recovery  under  the  Compensation  Act.  This,  however, 
is  a  retrogression  to  the  old  master  and  servant  law,  and  clearly 
against  the  intent  of  the  Workmen's  Compensation  Law,  which 
does  not  look  for  fault,  but  merely  insures  workmen  in  certain  em- 
ployments. 

"In  the  instant  case  the  injury  was  the  result  of  provocation  and 
passion  engendered  between  employees  in  the  course  of  their  em- 
ployment on  the  premises  of  the  employer  while  engaged  in  their 
daily  work.  Mclntyre  v.  Rodger,  41  Scot.  L.  Rep.  107 ;  Pekin 
Cooperage  Co.  v.  Industrial  Commission,  285  111.  31,  120  N.  E.  530. 

"Under  the  circumstances  of  the  instant  case  a  workman  at  work 
for  his  master,  who  sustains  injury  because  of  his  environment,  is 
entitled  to  recover.  This  right  to  recover  is  'not  nullified  by  the 
fact  that  his  injury  is  augmented  by  natural  human  reactions  to 
the  danger  of  injury  threatened  or  done. 

"The  purpose  of  the  Compensation  Act  was  to  benefit  certain 
workmen  otherwise  without  legal  recovery.  Under  its  provisions 
they  may  receive  compensation  independent  of  the  fault  of  the 
employer  at  common  law  or  other  statutes. 

732 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.        §   295 

"As  Judge  Pound  said  in  the  Matter  of  Heitz  v.  Ruppert,  218 
\  V.  148,  154,  112  N.  B.  750,  752,  (L.  R.  A.  1917A,  344),  speaking 
of  the  effect  and  purpose  of  the  Compensation  Act : 

'The  law  has  been  and  should  be  construed  fairly,  indeed 
liberally,  in  favor  of  the  employee.  Against  its  justness  or  econo- 
mic soundness  nothing  can  be  said.' 

'I  may  seem  harsh  and  arbitrary  to  impose  liability  upon  a 
master  for  an  assault  committed  by  a  workman  upon  a  ooworkman, 
but  the  purpose  and  intent  of  the  statute  is  to  fix  an  arbitrary 
liability  in  the  greater  public  interest  involved.  This  legislation 
was  to  ameliorate  a  social  condition — not  to  define  a  situation  or 
MX  a  liability  by  an  adherence  to  the  old  common  law.  Liability 
was  imposed  regardless  of  fault — vitally  different  from  that  under 
the  common  law.  Injury  by  an  employee  moved  by  some  cause 
aside  from  his  regular  duties,  may  be  considered  an  inevitable, 
however  undesirable,  result — a  risk  which  is  incident  to  the  em- 
ployment of  many  persons.  It  is  a  burden  which  industry  may 
well  bear  under  this  legislation.  Hulley  v.  Moosbrugger,  87  N. 
J.  Law,  103,  93  Atl.  79;  Thorn  v.  Sinclair,  A.  C.  127;  Pekin 
Cooperage  Co.  vv.  Industrial  Board,  277  111.  53,  115  N.  E.  128; 
Knopp  v.  American  Car  Co.,  186  111.  App.  605,  29  Yale  Law  Journ- 
al, 672.  The  claimant  is  entitled  to  the  benefit  of  the  act.'  "°° 

Where  an  employee  began  a  quarrel  with  a  fellow  employee  in 
the. morning  over  something  which  had  occurred  the  previous  e\vn 
ing  and  was  killed  in  the  affray,  his  death  was  not  due  to  an  acci- 
dent arising  out  of  the  employment.81 

Where  a  negro  killed  a  fellow  employee,  who  refused  to  brint; 
the  negro  a  drink  when  getting  one  for  himself,  the  death  was  not 
due  to  an  accident  having  its  origin  in  a  risk  of  the  employment.8- 

§  295.  Burden  of  Proof  to  Show  that  the  Injury  Was  Caused 
by  an  Accident  and  that  the  Accident  Arose  out  of  and  in  the 

90.  Verschlerser  v.  Joseph   Stern  £  Son,  — N.  Y.  App.   Div.— ,  1920, 
128  N.  E.  126,  6  W.  C.  L.  J.  472. 

91.  Marion  Coal  Co.  v.  Indus.  Comm.,  —  111.  — ,  (1920).  127  N.  E.  84,  « 
W.  C.  L.  J.   15. 

92.  City  of  Chicago  v.  Indus.  Comm.,  —  111.  — ,  (1920),  127  N.  E.  49.  6 
W.  C.  L.  J.  17. 

733 


§  295  WORKMEN'S  COMPENSATION  LAW 

Course  of  the  Employment. — A  night  watchman's  duties  required 
him  to  cross  from  one  side  of  a  ravine  to  another,  using  either  a 
trestle  or  a  narrow  footbridge.  He  was  last  seen  on  the  evening 
prior  to  his  death  when  he  reported  for  work.  The  next  morning 
his  body  was  found  about  8  feet  below  the  footbridge  with  injuries 
on  his  trunk,  hands,  and  the  back  of  his  head.  The  night  was 
exceedingly  cold  and  there  was  some  ice  and  snow  on  the  trestle, 
but  the  footbridge  had  been  cleared  of  ice  and  snow  the  previous 
day.  The  referee  made  an  award,  which  was  reversed  by  the 
court  of  common  pleas.  Reversing  the  judgment,  the  court  said: 
" Where  no  facts  appear  indicating  anything  to  the  contrary,  it 
may  be  presumed  logically  that  an  employee  at  his  regular  place 
of  service,  during  his  usual  working  hours,  is  there  in  discharge 
of  some  duty  incident  to  his  employment ;  and,  when  the  dead  body 
of  an  employee  is  found  on  the  premises  of  his  employer,  at  or 
near  the  regular  place  of  service,  under  circumstances  fairly  in- 
dicating an  accidental  death  which  probably  occurred  during  the 
usual  working  hours  of  the  deceased,  the  inference  may  fairly  be 
drawn,  in  the  absence  of  evidence  to  the  contrary,  that  the  em- 
ployee was  injured  in  the  course  of  his  employment.  Such  is  the 
case  at  bar."  93 

Decedent  was  employed  as  a  pipe  fitter  in  connection  with  the 
operation  of  furnaces.  He  disappeared  from  work  about  mid- 
night and  his  body  was  found  in  a  river  which  bordered  on  the 
grounds  where  the  plant  was  located.  Evidence  tended  to  show 
that  there  was  intense  heat  about  the  furnaces  and  also  some  gas, 
and  employees'  were  often  compelled  to  seek  relief,  on  that  account, 
by  going  out  on  the  river  bank  for  air.  There  was  also  testimony 
that,  on  the  night  of  deceased's  disappearance,  there  was  no  escap- 
ing gas,  and  that  deceased  was  not  required  to  make  any  repairs. 
When  last  seen  he  showed  no  signs  of  being  affected  by  gas.  Re- 
versing a  judgment  of  the  court  which  affirmed  an  award  for  his 
death,  the  court  held  that  the  burden  was  on  the  applicant  to  prove 
that  the  accidental  death  arose  out  of  the  employment  by  direct 

93.  Flucker  v.  Carnegie  Steel  Co.,  263  Pa.  113,  106  Atl.  192,  (1919), 
18  N.  C.  C.  A.  1055,  3W.  C.  L.  J.  780;  Sparks  Milling  Co.  v.  Indus.  Comm., 
-  111.  — ,  (1920),  6  W.  C.  L.  J.  299,  127  N.  E.  737. 

734 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   295 

and  positive  evidence,  or  by  evidence  justifying  such  inference 
without  resorting  to  surmise  or  conjecture,  and  that  the  evidence 
in  the  case  was  not  sufficient  upon  which  to  predicate  liability.04 

Where  an  employee  was  injured  in  the  course  of  his  employment 
pulling  pumps  and  repairing  pump  jacks,  the  court  held  that  the 
burden  of  proving  that  the  relation  of  employer  and  employee 
existed,  and  that  the  injury  was  due  to  an  accident  arising  out  of 
the  employment,  rested  upon  the  employee,  but  the  burden  of 
proving  that  the  employment  uas  merely  casual  rested  upon  tho 
employer.05 

The  applicant  was  struck  in  the  eye  with  a  piece  of  coal,  but 
continued  to  work  the  remainder  of  the  day,  and  reported  the  in- 
jury to  the  employer  the  following  Monday.  The  employer  sent 
him  to  an  eye  specialist,  but  despite  medical  treatment  the  vision 
of  the  eye  was  lost.  The  court  held  that  "It  was  incumbent  on  th--.; 
applicant  to  prove  that  his  loss  of  sight  was  caused  by  the  accident 
Chicago  &  Alton  Railroad  Co.  v.  Industrial  Board,  274  111.  336, 
113,  N.  E.  629;  Albaugh-Dover  Co.  v.  Industrial  Board,  278  111. 
179,  115  N.  E.  834;  Ohio  Building  Safety  Vault  Co.  v.  Industrial 
Board,  277  111.  96,  115  N.  E.  149 ;  Northern  Illinois  Traction  Co. 
v.  Industrial  Board,  279  111.  565,  117  N.  E.  95;  Peterson  &  Co.  v. 
Industrial  Board,  281  111.  326,  117  N.  E.  1033."  The  evidence 
tended  to  show  that  applicant  at  the  time  of  the  accident,  had  been 
suffering  from  choroiditis,  and  that  there  was  no  connection  be- 
tween the  blow  on  the  eye  and  the  loss  of  the  sight,  except  as  to 
35  per  cent,  which  was  due  to  the  scar,  and  that  applicant  would 
have  gone  blind  anyway  in  the  same  length  of  time,  and  therefore 
he  had  failed  to  prove  that  the  total  blindness  was  caused  by  an 
accident  arising  out  of  the  employment.  The  court  ordered  the 
award  reduced  accordingly.86 

94.  Wisconsin  Steel  Co.  v.  Indus.  Comm.,  288  111.  206,  123  N.  E.  295, 
(1919),  18  N.  C.  C.  A.  1056,  4  W.  C.  L.  J.  168. 

95.  Consumer's  Mutual  Oil  Producing  Co.  v.  Indus.  Comm.,  289  111.  423, 
(1919),  124  N.  E.  608,  5  W.  C.  L.  J.  31. 

96.  Spring  Valley  Coal  Co.  v.  Industrial  Commission  et  al.,  289  111.  315, 
124  N.  E.  545,  5  W.  C.  L.  J.  64;    New  Castle  Foundry  Co.  v.  Lysher,  - 
lud.  App.  — ,  120  N.  E.  713,  17  N.  C.  C.  A.  251,  3  W.  C.  L.  J.  119. 

735 


§  295  WORKMEN'S  COMPENSATION  LAW 

An  employee  whose  duty  it  was  to  mix  paint  in  a  factory,  volun- 
teered to  remove  a  belt;  the  condition  of  which  did  not  affect  him 
or  his  work,  and  before  the  foreman  had  time  to  stop  him  he  placed 
himself  in  a  position  where  he  could  not  avoid  being  injured. 
The  court  said:  "It  is  conceded  that  this  death  was  accidental, 
but  the  question  is:  Does  the  proof  tend  to  show  that  the  death 
occurred  while  deceased  was  reasonably  fulfilling  the  duties  of  his 
employment  or  engaged  in  doing  something  incidental  to  it?  The 
burden  is  on  the  applicant  to  prove  that  the  accident  arose  in  the 
course  of  and  out  of  the  employment  by  direct  and  positive  evi- 
dence or  by  evidence  by  which  such  inference  can  be  fairly 
drawn."97 

An  employee  fell  on  a  sidewalk  when  going  to  pick  up  a  rail. 
No  one  with  him  saw  the  fall  or  the  occasion  of  the  fall,  but  a 
passerby  testified  that  he  stumbled  on  a  grate  and  fell.  The  court 
held  that  the  burden  of  proving  that  an  accident  occurred  which 
arose  out  of  the  employment  rested  upon  applicant,  and  all  the 
evidence  should  be  considered  and  the  preponderance  of  all  the 
evidence  must  tend  to  substantiate  applicant's  claim.  The  com- 
mission's finding  that  applicant  tripped  on  a  grate  while  perform- 
ing his  duties  and  that  the  accident  arose  out  of  the  employment 
is  supported  by  some  evidence  and  is  therefore  conclusive.08 

Where  a  contractor's  employee  assists  with  a  machine  or  ap- 
pliance belonging  to  the  contractor,  but  in  the  work  of  a  subcon- 
tractor or  another  to  whom  he  is  lent,  he  may,  by  giving  his  con- 
sent, become  the  servant  of  another,  but  there  is  a  rebuttable 
presumption,  that,  in  the  management  of  such  machine,  Ke  remains 
in  the  service  of  his  original  employer." 

Where  a  foreman  in  a  composing  room  was  shot  by  a  janitor, 
the  burden  rested  upon  the  claimant  of  proving  that  the  shooting 
occurred  while  the  employee  was  engaged  in  defending  his  «;m- 

97.  George  S.  Mepham  &  Co.  v.  Indus.  Comm.,  289  111.  484,  (1919),  124 
N.  E.  540,  5  W.  C.  L.  J.  36;    Laskowski  v.  Jessup  &  Moore  Paper  Co.,  — 
Del.  — ,   (1919),  108  Atl.  281,  5  W.  C.  L.  J.  167. 

98.  Joseph  Halstead  Co.  v.  Indus.  Comm.,  (1919),  122  N.  E.  822,  287  111. 
509;    Mailman  v.  Record  Foundry  &  Machine  Co.,    (1919),  118  Me.  172, 
106  Atl.  606,  4  W.  C.  L.  J.  205. 

99.  Emack's  Case,  232  Mass.  596,  (1919),  123  N.  E.  86,  4  W.  C.  L.  J.  94. 
736 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    205 

ployer  or  his  employer's  property  or  interests,  or  was  in  some  way 
engaged  in  the  duties  of  his  employment,  and  that  the  assault- 
was  not  made  by  the  assailant  merely  for  purpose  of  gratifying 
a  personal  revenge.1 

"Where  an  employer  alleges  wilful  misconduct  on  the  part  of  the 
employee,  and  seeks  to  show  that  the  employee  was  acting  outside 
of  the  scope  of  his  employment,  the  burden  of  proving  the  wilful 
misconduct  rests  upon  the  employer.2 

If  the  claimant  furnishes  evidence  from  which  an  inference  can 
reasonably  be  drawn  that  the  injuries  and  death  were  due  to  the 
accident  arising  out  of  the  employment  within  the  meaning  of  the 
act,  the  burden  then  rests  upon  the  employer  to  disprove  the 
inference.8 

The  applicant  must  sustain  his  contention  by  a  preponderance 
of  the  evidence,  and  a  finding:  based  upon  mere  guess,  conjecture 
or  possibility  will  not  be  allowed  to  stand.4 

Where  an  employee  overexerts  himself  and  later  develops  a  dis- 
ease1 which  does  not  necessarily  connote  a  previous  injury, 
the  burden  is  on  applicant  to  prove  that  the  disease  resulted  fro»u 
an  injury.8 

1.  Marshall  v.  Baker- Vawter  Co.,  206  Mich.  466,  (1919),  173  N.  W.  191, 
4  W.  C.  L.  J.  399;    Chaudier  v.  Stearns  Culver  Lbr.  Co.,  206  Mich.  433,  173 
N.  W.  198,  (1919),  4  W.  C.  L.  J.  508. 

2.  Rosedale  Cemetery  Ass'n.  v.  Indus.  Ace.  Comm.  of  Cal.,  37  Cal.  App. 
706,  174  Pac.  351,  17  N.  C.  C.  A.  389,  2  W.  C.  L.  J.  754. 

3.  Sugar  Valley  Coal  Co.  v.  Drake,  64  Ind.  App.  — ,  117  N.  E.  937,  1 
V    C.  L.  J.  594.  Murphy's  Case,  230  Mass.  99,  119  N.  E.  657,  2  W.  C.  L.  J. 
270;    Peterson  &  Co.  v.  Industrial  Board,  281  111.  326,  117  N.  E.  1033,  1 
W.  C.  L.  J.  335;    Haskell,  etc.  Car.  Co.  v.  Brown,  64  Ind.  App.  — ,  117  N. 
E.  555,  1  W.  C.  L.  J.  48;    Ohio  Bldg.  Safety  Vault  Co.  v.  Industrial  Board, 
277  111.  96,  115  N.  E.  149;   Coastwise  Shipping  Co.  v.  Tolson,  132  Mass.  203, 
103  Atl.  478,  17  N.  C.  C.  A.  252,  2  W.  C.  L.  J.  91;    Mischaless  v.  Hammond 
Co.,  (Mich.),  166  N.  W.  933,  1  W.  C.  L.  J.  1055;    Muzik  v.  Erie  R.  R.  Co., 
85  N.  J.  L.  131,  88  Atl.  248,  Aff'g.  92  Atl.  1087,  86  N.  J.  L.  695,  Ann.  Gas. 
1916A,  140. 

4.  Albaugh-Dover  Co.  v.  Indus.  Bd.,  278  111.  179,  115  N.  E.  834;  Bloom- 
ington  R.  Co.  v.  Indus.  Bd.,  276  111.  454,  114  N.  E.  939;  In  re  Dube,  226 
Mass.  591,  116  N.  E.  234;    Piske  v.  Brooklyn  Cooperage  Co.,  143  La.  455, 
78  So.  734,  16  N.  C.  C.  A.  939;    Crucible  Steel  Forge  Co.  v.  Moir,  219  Fed. 
151,  8  N.  C.  C.  A.  1006. 

5.  Linnane  v.  Aetna  Brg.  Co.,  91  Conn.  158,  99  Atl.  507. 

737 
W.  C.— 47 


§  295  WORKMEN'S  COMPENSATION  LAW 

Where  an  engineer  was  engaged  in  heavy  work,  it  will  not  be 
inferred  from  this  fact  alone  that  a  hernia  suffered  by  claimant 
was  due  to  an  accident  arising  out  of  the  employment,  but  he  must 
prove  this  alleged  fact.6 

When  a  workman  receives  an  injury  which  could  have  been 
sustained  elsewhere  than  in  the  course  of  the  employment  and 
must  have  arisen  out  of  it,  he  need  not  prove  the  exact  cause  of 
the  injury  to  entitled  him  to  compensation.7 

Applicant,  seeking  compensation  for  the  death  of  an  employee, 
must  prove  by  competent  proof  the  death  of  the  servant.  This 
proof  is  sufficient  if  it  would  produce  conviction  in  an  unpred- 
judiced  mind.  The  proof  need  not  entirely  exclude  any  possibility 
of  death  due  in  part  to  a  diseased  condition ;  it  is  sufficient  if  the 
accident  is  shown  to  have  been  the  moving  cause.8 

A  pipe  fitter  engaged  in  a  quarrell  over  a  leteik  that  was  to  be 
repaired,  and  was  injured  in  a  fight  that  ensued.  In  holding 
that  the  board  was  justified  in  finding  that  the  accident  arose  out 
of  the  employment,  the  court  said:  "This  court  has  said  that  the 
burden  of  proof  rests  upon  the  applicant  to  furnish  evidence  from 
which  an  inference  can  logically  be  drawn  that  the  injury  arose 
out  of  and  in  the  course  of  the  employment,  but  that  such  proof 
may  be  circumstantial  as  well  as  direct.  Ohio  Building  Vault  Co. 
v.  Industrial  Board,  supra,  and  cases  there  cited.  We  have  also 
said  that  it  is  impossible  to  lay  down  any  rule  as  to  the  degree  of 
proof  which  is  sufficient  to  justify  an  inference  being  drawn  by 
the  Industrial  Board,  but  that  the  evidence  must  be  such  as  would 
induce  a  reasonable  man  to  draw  it;  that  where  there  is  ground 
for  comparing  and  balancing  probabilities  at  their  respective 

6.  Chicago  Ry.  Co.  v.  Indus.  Bd.,  274  111.  336,  113  N.  E.  629;   Nagy  v. 
Solvay  Process  Co.,  201  Mich.  158,   166  N.  W.  1033,  1  W.  C.  L.  J.  1049; 
Tackles  v.  Bryant,  etc.  Co.,  200  Mich.  350,  167  N.  W.  36,  1  W.  C.  L.  J.  1031. 

7.  In  re  Bean,  227  Mass.  558,  116  N.  E.  826;    Heileman  Brewing  Co.  v. 
Shaw,  154  N.  W.  631,  161  Wis.  433;    Stuart  v.  Kansas  City,  102  Kan.  307, 
171  Pac.  913,  2  W.  C.  L.  J.  58. 

8.  Western  Grain  Products  Co.  v.  Pillsbury,  173  Cal.  135,  159  Pac.  423; 
Shell  Co.  v.  Indus.  Ace.  Comm.,  36  Cal.  App.  463,  172  Pac.  611,  2  W.  C.  L.  J. 
34;    Bucyrus  Co.  v.  Townsend,  64  Ind.  App.  — ,  117  N.  E.  565,  1  W.  C.  L.  J. 
166. 

738 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    295 

values,  and  where  the  more  probable  conclusion  is  that  for  which 
the  applicant  contends,  the  arbitrator  is  justified  in  drawing  ;in 
inference  in  favor  of  the  applicant.  Peoria  Railway  Terminal  Co. 
v.  Industrial  Board,  279  111.  352,  116  N.  E.  651.  It  has  also  been 
said  that  what  is  evidence  of  a  fact  and  what  is  merely  guessing 
at  the  fact  "cannot  be  defined  by  any  formula  that  one  can  invenr ; 
that  what  is  wanted  is  to  weigh  the  probabilities,  to  see  if  there  !••• 
proved  facts  sufficient  to  enable  one  to  have1  some  foothold  or 
ground  for  comparing  and  balancing  the  probabilities  and  their 
respective  values,  one  against  the  other.  <  hvners  of  Ship  Swansea 
Vale  v.  Rice,  4  B.  W.  C.  C.  298.  While  the  burden  of  proof  is  on 
the  applicant  to  prove  his  case,  this  does  not  mean  that  he  must 
demonstrate  it  beyond  all  reasonable  doubt.  It  only  means  that 
there  must  be  evidence  in  his  favor  upon  which  a  reasonable  MKID 
can  act.  If  the  evidence,  though  slight,  is  sufficient  to  make  a 
reasonable  person  conclude  that  the  applicant  was  injured  while 
performing  his  duties  in  the  course  of  his  employment  or  duties 
incidental  to  that  employment,  then  the  case  is  proved.  Marshall  v. 
Owners  of  Ship  Wild  Rose,  3  B.  W.  C.  514.  In  proceedings  under 
the  Workmen's  Compensation  Law  this  court's  consideration 
of  the  evidence  is  limited  to  the  inquiry  whether  the  record  con- 
tains competent  evidence  to  sustain  the  award,  and,  if  so,  the  weight 
of  evidence  to  the  contrary  will  not  be  considered.  Pekin  Cooper- 
age Co.  v.  Industrial  Comm.,  supra.  The*  only  question  before  the 
court  is  whether  the  Industrial  Board  was  justified,  on  the  facts 
proved,  in  drawing  the  conclusion  it  has  drawn.  The  finding 
of  the  Industrial  Board  is  not  to  be  set  aside  if  warranted  by  evi- 
dence, although  the  court  might  feel  that  a  different  conclusion 
would  have  been  reached  if  the  members  of  the  court  had  been 
called  upon  to  decide  the  question  in  the  first  instance.  Von  Ette 
v.  Globe  Newspaper,  223  Mass.  56,  111  N.  E.  696,  L.  R.  A.  1916D, 
641.'" 

9.  Swift  &  Co.  v.  Indus.  Comm.,  (1919),  287  111.  564,  122  N.  E.  796,  4 
W.  C.  L.  J.  35,  18  N.  C.  C.  A.  1049;  Also  Westman's  Case,  118  Me.  133, 
(1919),  106  All.  532,  4  W.  C.  L.  J.  213;  David  Bradley  Mfg.  Co.  v. 
Indus.  Bd.  of  III.,  283  111.  468,  119  N.  E.  615,  17  N.  C.  C.  A.  250,  2  W.  C.  L, 
J.  226. 

739 


§  295  WORKMEN'S  COMPENSATION  LAW 

Where  the  circumstances  surrounding  deceased's  death  are  such 
as  to  lead  an  unprejudiced  mind  to  reasonably  infer  that  the  death 
was  caused  by  accident,  the  evidence  need  not  negative  all  other 
possible  causes  of  death.10 

The  court,  in  a  leading  case,  stated  the  general  rule  as  follows: 
"  It  is  well  settled  that  the  burden  rests  upon  the  one  claimnig  com- 
pensation to  show  by  competent  testimony,  direct  or  circumstantial, 
not  only  the  fact  of  an  injury,  but  that  it  occurred  in  connection 
with  the  alleged  employment,  and  both  arose  out  of  and  in  the 
course  of  the  service  at  which  the  party  was  employed."  ll 

10.  Bloomington,  etc.  Ry.  Co.  v.  Indus.  Bd.,  276  111.  454,  114  N.  B.  939; 
In  re  Uzzio,  228  Mass.  331,  117  N.  E.  349,  1  W.  C.  L.  J.  80;    Proctor  v.  Ser- 
bino  (owners),  (1915),  W.  C.  &  Ins.  Rep.  425,  10  N.  C.  C.  A     618;  De  Mann 
v.  Hydraulic,  etc.  Co.,  192  Mich.  594,  159  N.  W.  380;  Fogerty  v.  National 
Biscuit  Co.,  221  N.  Y.  20,  116  N.  E.  346,  Rev'g  175  App.  Div.  729,  161  N. 
Y.  S.  937;    Dixon  v.  Andrews,  92  N.  J.  L.  512,  103  Atl.  410,  2  W.  C.  L.  J. 
105;    Hollenbach  Co.  v.  Hollenbach,  181  Ky.  262,  204  S.  W.  152,  2  W.  C. 
L.  J.  493;    State  v.  District  Court,  134  Minn.  324,  159  N.  W.  755;    Guthrie 
v.  Detroit  Shipbuilding  Co.,  200  Mich.  355,  167  N.  W.  37,  1  W.  C.  L.  J. 
1035;    Sparks  Milling  Co.  v.  Indus.  Comm.,  —  111.  — ,   (1920),  127  N.  E. 
737,  6  W.  C.  L.  J.  299. 

11.  Hills  v.  Blair  et  al.,  182  Mich.  20,  148  N.  W.  243,  7  N.  C.  C.  A.  409; 
McCoy  v.  Mich.  Screw  Co.,  180  Mich.  454,  147  N.  W.  572,  L.  R.  A.  1916A, 
323;    Bryant  v.  Fissel,  84  N.  J.  L.  72,  86  Atl.  458,  3  N,  C.  C.  A.  585;  In  re 
Von  Ette,  223  Mass.  56,  111  N.  E.  697;    Union  Sanitary  Mfg.  Co.  v.  Davis, 
63  Ind.  App.  548,  115  N.  E.  676;    Savoy  Hotel  Co.  v.  Industrial  Board,  279 
111.  329,  116  N.  E.  712;    Chicago,  etc.  R.  Co.  v.  Industrial  Board,  274  111. 
336,   113,  N.  E.  629;     Roeblings   Sons  Co.  v.   Industrial   Ace.   Comm.,  36, 
Cal.  App.  10,  171  Pac.  987,  2  W.  C.  L.  J.  38;    Hallett's  Case,  230  Mass. 
326,  119  N.  E.  673,  2  W.  C.  L.  J.  281;    Albaugh-Dover  Co.  v.  Industrial 
Board,  278  111.  179,  115  N.  E.  834;    Draper  v.  Regents,  195  Mich.  449,  161 
N.  W.  956;    Schmoll  v.  Weisbrod,  etc.  Brewing  Co.,  89  N.  J.  L.  150,  99 
Atl.  723;    Inland  Steel  Co.  v.  Lambert,  64  Ind.  App.  — ,  118  N.  E.  162,  1 
W.  C.  L.  J.  347;    Peoria  R.,  etc.  Co.  v.  Industrial  Board,  279  111.  352,  116 
N.  E.  651;    Armour  &  Co.  v.  Industrial  Board,  273  111.  590,  113  N.  E.  138; 
De  Mann  v.  Hydraulic,  etc.  Co.,  192  Mich.  594,  159  N.  W.  380;    Tackles  v. 
Bryant,  etc.  Co.,  200  Mich.  350,  167  N.  W.  36,  1  W.  C.  L.  J.  1031;    Guthrie 
v.  Detroit  Shipbuilding  Co.,  200  Mich.  355,  167  N.  W.  37,  1  W.  C.  L.  J. 
1035;    Griffith  v.  Cole  Bros.,  183  la.  415,  165  N.  W.  577,  1  W.  C.  L.  J.  368; 
Brinsko's  Estate  v.  LoMgh  Valky  R.  Co.,  90  N.  J.  Law  £58,  102  Atl.  390, 
1  W.  C.  L.  J.  431;    Robinson  v.  State,  93  Conn.  49,  104  Atl.  491,  2  W.  C. 
L.  J.  779;    See,  contra,  McCabe  v.  Brooklyn  Heights  R.  Co.,  177  App.  Div. 

740 


ACCIDENT   ARISING  OUT  OP  COURSE  OV   EMPLOYMENT.      §   295 

Where  an  engine  hostler  was  last  seen  alive  working  on  his 
engine  and  ten  minutes  thereafter  was  found  lying  by  the  engine, 
dead  with  a  bullet  wound,  and  there  was  nothing  to  indicate  sui- 
cide nor  under  what  circumstances  the  shooting  occurred,  the  court 
said:  "The  case  turns  on  the  burden  of  proof  as  to  that  fact;  the 
lower  court  held  it  was  upon  the  claimants,  while  the  compensation 
board  held  it  was  upon  the  defendant.  We  agree  with  the  latter. 
The  general  rule  is  one  of  liability  for  violent  injury  suffered  by 
an  employee  in  the  course  of  his  employment,  as  this  undoubtedly 
was;  the  exception  is  that  the  employer  is  not  liable  for  'an  injury 
caused  by  an  act  of  a  third  person  intended  to  injure  the  employee 
because  of  reasons  personal  to  him.'  The  burden  of  proving  the 
exception  rests  upon  the  party  interposing  it  as  a  defense,  for  aw 
to  that  issue  he  holds  the  affirmative.  See  Zerbe  v.  Miller,  16 
Pa.  488,  16  Cyc.  928.  The  burden  of  proof  of  a  particular  allega- 
tion rests  upon  the  side  to  whose  case  it  is  necessary,  and  that  U 

107,  162  N.  Y.  S.  741;  Chludzinski  v.  Standard  Oil  Co.,  176  App.  Div.  87, 
162  N.  Y.  S.  225;  Englebretsen  v.  Indus.  Ace.  Comm.,  170  Cal.  793,  151 
Pac.  421.  10  N.  C.  C.  A*.  545;  Fragovich  v.  Iroquois  Iron  Co.,  269  111.  478, 
109  N.  E.  999,  10  N.  C.  C.  A.  475;  In  re  Savage,  222  Mass.  205,  110  N.  E. 
283;  Thackway  v.  Connelly  &  Sons,  3  B.  W.  C.  C.  37;  Lendrum  v.  Ayr 
Steam  Shipping  Co.,  Ltd..  (1916),  A.  C.  217,  (1914),  W.  C.  &  Ins.  Rep.  438, 
(1914),  2  Sc.  L.  T.  137,  8  N.  C.  C.  A.  1077;  Hopkins  v.  Port  Reading  R. 
Co.,  38  N.  J.  L.  J.  19;  Frith  v.  Louisianian  (owners  of),  (1912),  W.  C. 
Rep.  285,  9  N.  C.  C.  A.  262;  Murphy  &  Sandwith  v.  Cooney,  (1914),  W. 
C.  &  Ins.  Rep.  44,  9  N.  C.  C.  A.  263;  Smith  v.  Crescent  Belting  Co.,  37 
N.  J.  L.  J.  292,  10  N.  C.  C.  A.  640;  Zabriskie  v.  Erie  R.  Co.,  85  N.  J.  L.  J. 
157,  4  N.  C.  C.  A.  778;  Curran  v.  Newark  Gear  Cutting  Machine  Co.,  37 
N.  J.  L.  J.  21;  Chicago  Great  Western  R.  Co.  v.  Indus.  Com.  of  111.,  284 
111.  573,  120  N.  E.  508,  3  W.  C.  L.  J.  14;  Dow's  Case,  In  re  Mutual  Liab. 
Assur.  Co.,  231  Mass.  341,  3  W.  C.  L.  J.  144,  121  N.  E.  19;  Ginsburg  v. 
Burroughs  Adding  Machine  Co.,  204  Mich.  130,  170  N.  W.  15,  3  W.  C. 
L.  J.  317;  Hege  ft  Co.  T.  Tompkins,  —  (Ind.  App.)  — ,  (1919),  121  N.  E. 
677,  3  W.  C.  L.  J.  451;  Rish  v.  Iowa  Portland  A  Cement  Co.,  (Iowa), 
(1919),  170  N.  W.  532,  3  W.  C.  L.  J.  463,  Nelson  Const.  Co.  v.  Indus.  Com. 
of  111.,  (1919),  286  111.  632,  122  N.  E.  113,  3  W.  C.  L.  J.  605;  Benjamin 
J  Shaw  Co.  v.  Palmatory,  (Del.),  (1919),  105  Atl.  417,  3  W.  C.  L 
J.  424;  Carberry  v.  Deleware  L.  &  W.  R.  Co.,  93  N.  J.  L.  414.  (1919).  108 
Atl.  364,  5  W.  C  L.  J.  419;  Grant  v.  Fleming  Bros.  Co.,  —  (la.)  — , 
176  N.  W.  640,  5  W.  C.  L.  J.  688;  Morris  *  Co.  v.  Indus.  Comm.,  —  111. 
— ,  (1920),  128  N.  W.  727,  7  W.  C.  L.  J.  41. 

741 


§  295  WORKMEN'S  COMPENSATION  LAW 

the  defendent  here.     See  5  Am.  &  Eng.  Enc.  of  L.  (2d.  Ed.),  p. 
24.  "12 

"The  decedent,  apparently  while  on  his  way  to  that  part  of  the 
employer's  plant  where  his  services  were  to  begin  presently,  was 
passing  down  .an  alley  between  rows  of  machinery,  when  he  was 
warned  of  an  approaching  electric  truck  from  the  rear.  In  step- 
ping aside,  he  appears  to'have  reeled  and  walked  backward  upon 
his  heels,  falling  in  such  a  manner  as  to  produce  a  fracture  of 
the  skull  resulting  in  death  some  hours  later.  While  it  is -highly 
probable  that,  had  he  been  perfectly  sober,  the  accident  would  not 
have  occurred,  the  statute  provides  that  in  order  to  forfeit  the 
benefits  of  the  act,  the  injury  must  result  'solely  from  the  intoxi- 
cation of  the  injured  employee  while  on  duty.'  Workmen's  Com- 
pensation Law,  section  10.  No  such  condition  is  shown  by  the 
evidence ;  certainly  the  presumption  is  not  overcome,  and  the  award 
must  be  sustained.  The  injury  occurred  upon  the  premises  of  the 
employer,  apparently  while  the  decedent  was  about  to  take  up  the 
duties  of  his  employment,  and  the  presumptions  of  section  21,  as 
well  as  the  adjudications  (Murphy  v.  Ludlum  Steel  Co.,  182  App. 
Div.  139,  169  N.  Y.  Supp.  781),  support  the  conclusions  of  the 
commission.  The  award  should  be  affirmed."13 

An  employee  was  sent  to  a  private  railroad  yard,  to  unload  a 
car.load  of  lumber.  He  twice  telephoned  his  employer  about  the 
nonarrival  of  the  trucks  with  which  to  remove  the  lumber.  He 
was  killed  in  a  nearby  railroad  yard,  through  which  he  might  have 
gone  to  reach  a  telephone.  The  court,  holding  that  the  accident 
arose  out  of  the  employment,  said:  "It  is  not  known  definitely 
from  what  point  the  deceased  had  sent  in  the  telephone  calls  to 
his  employer,  but  there  was  a  telephone  at  the  offices  of  the  rail- 
road, near  the  place  where  the  deceased  was  killed.  The  commis- 
sion assumed  that  the  deceased  was  on  his  way  to  telephone  his  em- 
ployer once  more  when  he  was  struck  and  killed.  No  one  knows 
the  purpose  to  serve  which,  the  deceased  had  gone  upon  the  railroad 

12.  Keyes  v.  New  York  Ry.  Co.,  265  Penn.  105,   (1919),  108  Atl.  406,  5 
W.  C.  L.  J.  464. 

13.  Richards  v.  New  York  Air  Brake  Co.,  (Dec.  29,  1919),  *179  N.  Y.  S. 
317,  5  W.  C.  L.  J.  443,  190  App.  Div.  78. 

742 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    296 

lands.  lie  may  have  gone  there  in  aid  of  his  master,  or  upon  busl- 
ii>  -s  or  pleasure  of  his  own.  There  being  no  substantial  evidence 
to  indicate  the  contrary,  it  must  be  presumed  that  his  journey  was 
made  to  serve  his  master,  and  that  he  was  killed  by  an  accident 
arising  out  of  and  in  the  course  of  his  employment."14 

HI-LINGS  AFFECTING  SPECIFIC  CASES  AS  ARISING  OUT  OP  AND  IN  THE 
COURSE  OP  THE  EMPLOYMENT. 

§  296.  Acting  Under  Unauthorized  Orders. — The  general  rule, 
governing  cases  wherein  an  employee  performs  an  act  outside  of 
the  scope  of  his  regular  duties,  at  the  direction  of  one  who  has 
no  authority  to  give  such  orders,  and  is  injured  while  so  doing,  in 
the  mistaken  belief  that  the  party  giving  the  orders  had  authority 
to  give  such  orders  does  not  make  the  accident  one  arising  out  of 
and  in  the  course  of  the  employment.  But  orders  given  by  one 
superior  in  authority  presents  a  different  question,  and  the  tenden- 
cy of  the  decisions  seems  to  be  to  the  effect  that  the  injured  em- 
ployee is  entitled  to  compensation.  So,  where  a  cinder  pit  man 
falsely  stated  to  decedent,  his  co-employee,  that  the  general  fore- 
man told  him  to  direct  decedent  to  act  in  his  place  while  he  did 
something  else,  and  decedent  acted  on  such  orders  and  was  killed, 
it  was  held  that  the  accident  could  not  be  said  to  arise  out  of  the 
employment  in  which  deceased  was  expected  to  engage.15 

Where  a  superintendant  instructs  a  servant  to  perform  certain 
duties  for  the  benefit  of  the  superintendant,  and  the  servant  is 
injured  while  so  doing,  believing  that  he  was  acting  for  his  master 
and  is  injured,  an  instruction  relieving  the  master  from  liability, 
on  the  ground  that  the  injury  occurred  while  not  engaged  about 
the  masters  business,  is  properly  refused.10 

A  minor,  employed  l.\  a  newspaper  establishment  as  a  carrier. 
worked  under  a  foreman  whose  duties  were  in  no  way  connected 

14.  Smith  v.  A.  M.  Oesterheld  &  Son,  (1919),  179  N.  Y.  S.  10,  5  W.  C. 
L.  J.  445,  189  App.  Div.  384. 

15.  Southern  Railway  Co.  in  Kentucky  v.  Popes  Admr.,  119  S.  W.  237, 
133  Ky.  835. 

16.  Sims  v.  Omaha  K.  C.  ft  E.  Ry  Co..  89  Mo.  App.  197. 

743 


§•  297  WORKMEN'S  COMPENSATION  LAW 

with  the  operation  of  the  machinery.  The  foreman,  without  au- 
thority, ordered  the  minor  to  remove  papers  from  a  folding  ma- 
chine, and  he  was  injured  while  obeying.  It  was  held  that  the 
minor  was  a  mere  volunteer,  and  the  master  was  not  liable.17 

Where  one  complies  with  an  order  given  to  him  by  one  from 
whom  he  receives  his  orders,  which  order  he  knew  or  ought  to  have 
known  the  party  had  no  authority  to  give,  as  it  was  expressly 
against  the  rules  of  the  employer,  and  the  employee  in  obeying 
such  order  is  injured,  the  injury  may  nevertheless  be  an  accident 
arising  out  of  the  employment.18 

Where  a  boy  was  accustomed  to  do  all  sorts  of  things  at  tha 
direction  of  his  foreman,  and  was  told  by  another  that  the  foreman 
directed  him  to  do  certain  work  which  statement  was  false  but 
believed  by  the  boy  and  acted  upon,  with  the  result  that  the  boy 
was  injured,  it  was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment.19 

Where  an  employee  was  injured  while  acting  under  the  orders 
of  a  fire  warden,  as  authorized  by  a  statute,  it  was  held  that  the 
injury  could  not  be  said  to  have  arisen  out  of  his  employment.29 

The  applicant,  who  was  employed  as  a  teamster,  in  a  municipal 
woodyard,  for  his  board  and  lodging,  was  injured  while  acting  out- 
side of  the  scope  of  his  regular  duties,  but  in  obedience  to  the 
orders  of  a  superintendent  who  had  general  authority  to  give 
orders.  It  was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment.21 

§  297.  Acids. — An  employee  found  that  there  was  no  hot 
water  for  cleaning  up  after  work  and  endeavored  to  heat  water 
by  placing  a  bucket  in  what  he  supposed  was  a  tank  of  hot  water, 
but  which  was  a  tank  of  acid.  The  acid  exploded  and  injured  him. 

17.  Hatfield  v.  Adams,  96  S.  W.  583,  29  Ky.  Law.  880. 

18.  Statham  v.  Galloways  Ltd.,  2  W.  C.  C.  149;  In  *-e  Felix  McGowan, 
3rd.  A.  R.  TJ.  S.  C.  C.  172. 

19.  Brown  v.  Scott,  (1899),  1  W.  C.  C.  11. 

20.  Kennelly  v.  Stearns  Salt,  etc.,  Co.  190  Mich.  628,  157  N.  W.  378. 

21.  City  of  Oakland  v.  Indus.  Ace.  Comm.  of  Cal.,  35  Cal.  484,  170  Pac. 
430,  1  W.  C.  L.  J.  488. 

744 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.          §    298 

In  holding  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment,  the  court  said:  "The  tank  of  acid  constituted  an 
insidious  danger  and  potential  peril  to  which  employees  in  that 
institution  were  in  some  degree  exposed.  The  injury  sustained 
by  appellee  had  its  origin  in  conditions  of  such  a  nature  as  would 
prompt  one  to  conclude,  as  of  first  impression,  that  it  arose  out  of 
the  employment.  As  against  that  conclusion,  it  may  be  said  with 
much  force  that  the  workman  stepped  so  far  outside  the  custom 
as  to  exceed  the  bounds  of  reason;  and  that  by  his  own  rash  con- 
duct he  transformed  a  latent  into  an  active  peril,  thereby  creating 
the  hazard  which  resulted  in  his  injury."  " 

Where  an  employee  sustained  an  injury  to  his  eye,  while  clean- 
ing out  a  storage  tank  when  acid  splashed  into  his  eye,  it  was  held 
that  he  sustained  an  injury  arising  out  of  the  employment.*3 

An  employee,  who  was  engaged  in  drawing  wire  and  handling 
acid,  contracted  rash  and  eczema  due  to  the  acid.  It  was  held 
that  she  had  suffered  an  injury  arising  out  of  the  employment.24 

An  employee  who  was  engaged  in  handling  cloth  treated  with 
chemicals  contracted  a  rash  which  later  developed  into  eczema 
and  spread  over  his  whole  body.  The  court  held  that  the  evidence 
was  sufficient  to  justify  the  board  in  finding  that  claimant  suffered 
an  accidental  injury  arsing  out  of  the  employment.25 

Where  poisoneous  substance  enters  the  system  though  an  a- 
hrasion  of  the  skin  while  the  employee  is  acting  within  the  course 
of  his  employment,  he  has  sustained  an  injury  arising  out  of  the 
employment.29 

Where  an  employee,  engaged  in  attending  to  stopcocks  on  acid 
barrels,  sustained  injury  to  his  eyes  from  acid  spurting  from  a 

22.  In  re  Ayers  (Ind.  App.),  121  N.  E.  446,  18  N.  C.  C.  A.  1022  (1919), 

23.  Armstrong  v.  California  Rex  Spray  Co.,  1  Cal.  I.  A.  C.  D.,  (1914), 
190,  10  N.  C.  C.  A.  261;  Anderson  v.  Ashmore  Mut.  Tel.  Co.,  111.  Ind,  Bd. 
Dec.,  (1915),  10  N.  C.  C.  A.  262;  Cox  v.  Gainsley,  2  Cal.  I.  A,  C,  D..  (1915), 
230,  10  N.  C.  C.  A.  264 . 

24.  Dolan  v.  Masaachueetts,  Wkm.  Comp.  Cases,  (1913).  259,  10  N.  C. 
C.  A.  262. 

25.  Rlker  v.  Llondale  Bleach  Dye  &  Print  Works,  36  N.  J.  L.  305,  10 
N.  C.  C.  A.  262;  Boris  v.   Frankfort  Gen   Ins.  Co.,  1   Mass.  Wkm,   Comp, 
Caa.,  (1913),  276,  10  N.  C.  C.  A.  264. 

26.  In  re  Goldberg,  Ohio  Ind.  Comm.  Dec.,  (1914),  10  N.  C.  C.  A.  268. 

745 


§  297  WORKMEN'S  COMPENSATION  LAW 

defective  stopcock,  it  was  held  that  he  sustained  an  injury  arising 
out  of  the  employment.27 

An  employee  was  disfigured  by  coming  in  contact  with  acids. 
He  sought  compensation  claiming  that  his  disfigurement  prevent- 
ed him  from  obtaining  work.  The  court  held  that  compensation 
will  not  be  awarded  for  mere  disfigurement,  but  if  it  were  shown 
that  because  disfigurement  precluded  an  employee  from  obtaining 
work  that  compensation  would  be  granted.  In  the  present  case 
the  applicant  did  not  sustain  by  evidence  the  allegation  of  non- 
ability  to  obtain  work,  and  therefore  his  claim  was  dismissed.28 

Where  an  employee,  engaged  in  cleaning  a  floor,  sustained  an 
abrasion  on  the  ends  of  his  fingers,  but  it  was  shown  that  the  acids 
used  were  disinfectants  and  that  the  germs  which  caused  infection 
were  not  due  to  the  solution,  it  was  held  that  the  applicant  had  not 
shown  that  the  injury  was  due  to  an  accident  arising  out  of  the 
employment.29 

An  employee  was  requested  to  bring  a  bottle  of  muriatic  acid 
to  the  place  of  his  employment  the  next  day.  He  purchased  it 
and  placed  it  in  his  hip  pocket,  and  it  broke  while  he  was  sitting 
in  a  saloon  talking  to  friends,  some  two  or  three  hours  later.  It 
was  held  that  the  accident  did  not  arise  out  of  the  employment, 
but  the  board  said  that  if  the  employee  had  purchased  the  muriatic 
acid  and  proceeded  within  a  reasonable  time  to  his  home,  and 
while  on  his  way  received  the  injury,  there  would  probably  be  no 
question  as  to  his  right  to  compensation,  or  if  having  taken  the 
acid  home,  he  met  with  the  injury  while  taking  it  to  his  place  of 
employment  the  following  morning,  his  right  to  compensation 
would  not  be  denied.30 

27.  Del  Bianco  v.  Gen.  Chemical  Co.  of  Cal.,  2  Cal.  I.  A.  C.  D,,  (1915), 
210,  10  N.  C.  C.  A.  265. 

28.  Clooney  v.  Cresent  Glass  Specialty  Co.,  37  N.  J.  L.  J.  82,  10  N.  C. 
C.  A.  265. 

29.  Norris  v.  Williams  &  Larson,  3  Wis.  I.  C.  D.,  (1914),  69,  10  N.  C. 
C.  A.  266;  Mrczee  v.  Pfister  &  Vogel  Leather  Co.,  3  Wis.  I.  C.  D.,  (1913), 
46,  10  N.  C.  C.  A.  266;  Murphy  v.  Employer's  Liab.  Assur.  Corp.  Ltd.,  2 
Mass.  Wkm.  C.  C.,  (1914),  643,  10  N.  C.  C.  A.  269. 

30.     Callahan  v.  Employer's  Liab.  Assur.  Corp.,  2  Mass.  I.  A.  Bd.  684, 
12  N.  C.  C.  A  397. 
746 


ACCIDENT   ARISING   OUT   OP   COURSE  OP   EMPLOYMENT.       §    298 

§  298.  Act  of  God. — Where  a  factory  foreman  suffered  a  fatal 
injury  when  the  walls  of  a  building  collapsed  on  account  of  a  high 
wind  while  the  foreman  was  attempting  to  close  windows,  a  part 
of  his  duties,  death  was  held  to  have  arisen  out  of  and  in  the 
course  of  his  employment,  and  not  to  have  been  caused  by  an  act 
of  God." 

Where  an  employee  was  accidently  drowned  while  on  a  dredge 
on  account  of  a  violent  storm,  recovery  on  the  employer's  in- 
surance policies  could  not  be  defeated  under  the  Workmen's  Com- 
pensation Act  on  the  ground  that  the  accident  was  an  act  of  God, 
since  this  obligation  having  been  voluntarily  and  knowingly  en- 
tered into,  with  knowledge  of  all  the  dangers  incident  to  this  class 
of  employment,  this  ab&olute  and  unqualified  contract  of  insurance 
was  not  one  the  surety  company  was  bound  or  compelled  to  make, 
nor  did  the  law  require  any  such  duty  or  impose  any  such  obli- 
gation upon  it,  as  would  permit  it  to  excuse  itself  by  pleading  an 
inevitable  accident  or  the  act  of  God.32 

Death  from  lightning,  while  operating  a  steel  road  grader  xvas 
due  to  an  act  of  God  and  not  to  any  peculiar  hazard  of  the  em- 
ployment.83 

Where  an  employee  was  killed  in  a  cyclone,  while  working  in 
a  plant,  where  ammonia  fumes  and  scalding  steam  contributed  to 
his  injuries  the  court  in  holding  th.it  the  death  \\as  due  to  a  pecu- 
liar risk  of  the  employm'ent  said:  "We  believe  the  reasonable 
rule  to  be  that  if  deceased,  by  reason  of  his  employment,  was  ox- 
posed  to  a  risk  of  being  injured  by  a  storm  which  was  greater 
than  the  risk  to  which  the  public  in  that  vicinity  was  subjected, 
or  if  his  employment  necessarily  accentuated  the  natural  hazard 
from  the  storm,  which  increased  hazard  contributed  to  the  injury, 
it  was  an  injury  arising  out  of  the  employment,  although  uncx- 

31.  Reid  v.  Automatic  Electric  Waaher  Co.,  —  la.  — ,  179  N.  W.  323,  6 
W.  C.  L.  J.  662. 

32.  Southern  Surety  Co.  v.  Nelson,  —  Tex.  Civ.  App.  — ,  (1*20),  223  S. 
W.  298.  6  W.  C.  L.  J.  508;  Southern  Surety  Co.  v.  Stubbs,  199  S.  W,  343. 
1  W.  C.  L.  J.  444. 

33.  Wiggins    v.    Indus.  Ace.    Bd.,   --    Moat.    — ,  170    Pac.    9,  1    \V.    C. 
L   J.  643. 

747 


§•  299  WORKMEN'S  COMPENSATION  LAW 

pected  and  unusual.  An  injury,  to  come  within  the  Compensation 
Act  (Laws  1913  p.  335,)  need  not  be  an  anticipated  one,  nor,  in 
general,  need  it  be  one  peculiar  to  the  particular  employment  in 
which  one  is  engaged  at  the  time.  While  the  risk  arising  from  the 
action  of  the  elements,  such  as  a  cyclone,  is  such  a  risk  as  all  people 
of  the  same  locality  are  subjected  to  independent  of  employment, 
yet  the  circumstances  of  a  particular  employment  may  make  the 
danger  of  receiving  a  particular  injury  through  such  storm  an 
exceptional  risk,  and  one  to  which  the  public  is  not  subjected. 
Such  injury  may  be  then  said  to  rise  out  of  the  employment.  In 
the  instant  case,  while  the  risk  of  being  injured  by  this  cyclone 
may  be  said  to  have  been  a  risk  common  to  the  public  in  the 
vicinity  of  such  cyclone,  regardless  of  employment,  yet  if  there 
was  in  the  circustances  of  Kilgore's  employment  an  unusual  risk 
or  danger  of  injury  from  the  destruction  by  storm  of  the  build- 
ing in  which  he  was  employed,  such  risk  may  be  said  to  be  inci- 
dent to  the  employment  of  the  deceased,  and  the  injury  received 
to  rise  out  of  such  employment.  Deceased  at  the  time  the  storm 
broke  was  engaged  in  assisting  and  directing  the  closing  up  of  the 
plant  of  defendant  in  error.  These  duties  took  him  among  the 
steam  pipes  and  ammonia  coils,  which  subjected  him  to  an  un- 
usual risk  of  being  injured  from  escaping  steam  and  ammonia 
fumes  should  the  building  be  destroyed  by  storm.  The  evidence 
shows  that  the  ammonia  fumes  and  scalding  steam  contributed  most 
largely  to  the  injuries  which  caued  his  death.  We  are  therefore  of 
the  opinion  that  there  were  in  the  circumtances  of  the  employment 
of  the  deceased  risks  of  being  injured  by  the  storm  not  common  to 
the  public  in  that  vicinity,  and  the  circuit  court  therefore  erred 
in  setting  aside  the  award."34 

§  299.  Anaesthetic  Causing  Death  During  Surgical  Operation. 

—Where  a  workmen's  arm  was  so  badly  cut  by  his  coming  in 
contact  with  a  saw  that  an  immediate  amputation  was  made  neces- 
sary without  sufficient  time  to  prepare  him  for  ether,  and  as  a  re- 

34.     Central  111.  Pub.  Serv.  Co.  v.  Indus.  Comm.,  —  111,  — ,  (1920),  126 
N.  E.  144,  5  W.  C.  L.  J.  661.. 
748 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    300 

suit  he  contracted  ether  pneumonia  and  died,  it  was  held  that  the 
death  was  due  to  the  accident,  which  arose  out  of  and  in  the  course 
of  the  employment." 

Where  an  employee  suffered  an  injury  in  the  course  of  his  em- 
ployment, including  a  laceration  of  his  fingers,  and  gangrene  set 
in,  necessitating  an  operation,  and  later  a  second  operation  was 
necessary,  and  as  a  result  of  the  anaesthetic  the  patient  developed 
pneumonia  and  died,  the  death  was  held  to  be  due  to  the  accident.30 

Where  a  workman  crushed  his  hand,  and  by  a  skillful  operation 
the  hand  was  saved,  but  later  a  second  operation  became  necessary 
to  prevent  the  hand  becoming  stiff  and  useless,  and  the  patient  died 
under  the  anaesthetic,  it  was  held  that  the  second  operation  was 
merely  a  continuation  of  the  first,  and  that  the  death  arose  from 
the  accident,  which  occurred  in  the  course  of  the  employment.17 

An  employee  received  an  injury  necessitating  the  amputation  of 
one  of  his  fingers.  When  he  was  recovering  from  the  anaesthetic 
the  surgeons  decided  to  remove  a  bad  tooth  of  which  he  had  com- 
plained. Further  anaesthetics  were  administered,  and  an  un- 
successful attempt  was  made  to  remove  the  tooth.  Shortly  after- 
wards the  workman  died.  In  a  claim  for  compensation  it  was  held 
that  the  workman  died  from  a  failure  of  respiration  caused  by 
the  anaesthetic,  and  that  it  was  as  likely  that  he  died  from  an 
attempt  to  swallow  blood  oozing  from  his  tooth  as  it  was  that -the 
first  anaesthetic  caused  it,  and  the  onus  of  proving  the  death  was 
due  to  an  accident  arising  out  of  the  employment  had  not  been 
discharged." 

§  300.  Anthrax. — Where  a  wool  sorter  became  infected  with 
anthrax  germs  while  working  in  the  course  of  his  employment. 

35.  In  re   Raymond  Mass.  Wkm.    Comp.  Rep.,    (1913),  277,    6  N.   C.  C. 
A.  627;  O'Connor  v.  Daly,  1  Conn.  Comp.  Dec.  643. 

36.  Favro    v.    Board  of   Public    Library   Trustees,  1    Cal.    I.  A.   C.  D., 
(1914),  1,  6  N.  C.  C.  A.  627. 

37.  Shirt  v.    Calico  Printers'   Ass'n.,  Ltd ,  78  L,  J.    K,   B,  528,  2  B.  \V. 
C.   C.   342,    (1909).   2   K.   B.  51,   100   L.   T.  740,  25   L.   T.   R.  451,    53    Sol, 
J.  430,  6  N.  C.  C.  A.  627. 

38.  Charles  v.  Walker,  Ltd.,  26  T.  L.  R.  609,  2  B.  W.  C.  C,  5,  (1909), 
6  N.  C.  C.  A.  628. 

749 


§  300  WORKMEN'S  COMPENSATION  LAW 

and  later  died,  the  court  held  that  the  death  was  due  to  an  accident 
arising  out  of  and  in  the  course  of  the  employment,  within  the 
meaning  of  the  act.39 

Decedent  was  engaged  in  handling  hides  in  a  tannery.  A  day 
or  so  later  he  noticed  a  swelling  on  his  neck  under  his  jaw.  He 
grew  rapidly  worse  and  died  a  few  days  later  from  sceptic  infec- 
tion. The  board  found  that  anthrax  germs  had  been  taken  up 
by  the  respiration  organs  and  carried  into  his  system,  an  occurrence 
so  unusual  in  the  work  at  which  he  was  engaged  as  to  constitute 
an  accident  arising  out  of  his  employment.  On  appeal  the  finding 
of  the  board  was  affirmed.40 

An  employee  engaged  in  weighing  hides  suffered  a  fissure  in  the 
back  of  his  hand  as  a  result  of  wet  salt  permeating  his  gloves. 
Anthrax  germs  from  dirty  and  diseased  hides  entered  his  system 
through  this  fissure.  In  affirming  an  award,  the  court  said:  "The 
claimant,  in  the  course  of  his  employment  and  as  a  result  thereof, 
had  received  an  abrasion  on  his  hand  or  a  fissure  therein.  This 
may  properly  be  deemed  an  accidental  injury  arising  out  of  and 
in  the  course  of  his  employment,  and  the  disease  or  infection 
caused  by  the  anthrax  germ  may  be  deemed  'such  disease  or  in- 
fection as  may  naturally  and  unavoidaby  result'  from  such  injury, 
within  the  meaning  of  the  statute."41 

Where  a  workman  suffered  from  anthrax  as  a  result  of  bacillus 
entering  into  his  eye,  while  pursuing  his  usual  course  of  employ- 
ment sorting  wool,  it  was  held  that  he  suffered  from  an  accident 
arising  out  of  and  in  the  course  of  his  employment.42 

Where  an  employee  had  cut  himself  with  a  razor  when  not  en- 
gaged in  the  duties  of  his  employment,  and  later  contracted  an- 
thrax germs  through  the  cut  on  his  face  and  died  as  a  result  there- 

39.  McCauley  v.  Imperial  Wollen  Co.,  261  Pa.  312.  17  N.  C.  C.  A.  864, 
104  Atl.  617. 

40.  Dove  v.  Alpena  Hide  &  Leather  Co.,  198  Mich.  132,  164  N.  W.  253. 

41.  Hiers  v.    Hull  &  Co.,   178  N.  Y.  App.  Div.    350,  14  N.    C.  C.  A    853, 
164  N.  Y.  S.  767. 

42.  Brintons  Ltd.  v.  Turvey,   (1905),  A.  C.  230,  74  L.  J.  K.  B.  474,  92 
L.  T.  578,  21  T.  L.  R.  444,  53  W.  R.  641,  7  W.  C.  C.  1,  6  N.   C.  C.  A.  880; 
Bellamy  v.  Humphries,  (1913),  W.  C.  &  Ins.  Rep.  169,  6  B.  W.  C.  C.  53. 

750 


ACCIDENT   ARISING   OUT  OP   COURSE  OF   EMPLOYMENT.      §    301 

of,  the  court  held  that  the  death  was  proximately  due  to  an  acci- 
dent arising  out  of  and  in  the  course  of  the  employment.41 

Evidence  that  a  hostler  died  of  anthrax,  which  resulted  from  in- 
fection through  a  boil  in  his  nose,  without  proof  that  he  came 
in  contact  with  any  diseased  animal,  except  a  lame  horse,  is  in- 
sufficient to  show  that  the  disease  was  contracted  in  the  course  of 
his  employment.44 

§  301.  Appendicitis. — Where  an  employee  was  kicked  in  the 
stomach  by  a  mule,  and  later  the  employee  was  operated  on  in 
a  hospital  for  appendicitis  and  death  resulted  from  general  peri- 
tonis  following  an  acute  attack  of  appendicitis,  the  board  found 
that  the  death  was  due  to  the  kick  in  the  stomach,  and  therefore 
was  the  result  of  an  accident  arising  out  of  and  in  the  course 
of  the  employment.  On  appeal  the  court  held  that  in  view  of 
such  finding  the  burden  of  proving  that  it  did  not  so  arise  rested 
on  the  employer.45 

Where  an  employee  slipped  while  climbing  out  of  a  prism  of  a 
barge  canal,  striking  his  abdomen  and  injuring  a  diseased  ap- 
pendix, and  the  fall  caused  an  acute  exacerbation  thereof,  pro- 
ducing a  rupture,  from  which  acute  peritonitis  developed  and 
caused  his  death,  it  was  held  that  the  injury  was  due  to  an  acci- 
dent arising  out  of  the  employment.40 

Where  a  collier  complained  of  being  accidently  hurt  by  coal 
rolling  down  against  him  from  a  pile  as  he  was  filling  baskets 
of  coal,  and  later  he  died  of  appendicitis  and  a  rupture  of  the 
bowels,  the  court  held  that  the  evidence  was  sufficient  to  establish 

43.  Eldridge  v.  Endicott-Johnson  &  Co.,  177  N.  Y.  Supp.  863,   (1919), 
4  W.  C.  L.  J.  621,  189  App.  Div.  53.  This  case  was  reversed- on  appeal,  - 
App.  Div.  — .  126  N.  E.  254,  5  W.  C.  L.  J.  716. 

44.  White    v.   American    Society    for    the    Prevention   of   Cruelty   to 
Animals,  —  App.  Div.  — ,  (1920).  180  N.  Y.  Supp.  867.  5  W.  C.  L.  J.  874. 

Note:     See  same  title  in  chapter  on  Accidents. 

45.  Jewel  Tea  Co.  v.  Weber,  132  Md.  178,  103  All.  476,  17  N.  C.  C.  A. 
252,  2  W.  C.  L.  J.  87. 

46.  Lindquest  v.  Holler,  164  N.  Y.  Supp.  906.  178  App.  Div.  317.  14  N. 
C.  C.  A.  432.  Stolte  v.  N.  Y.  State  Sewer  Pipe  Co.,  179  N.  Y.  App.  Div. 
949,  165  N.  Y.    S.  1114. 

751 


§  302  WORKMEN'S  COMPENSATION  LAW 

that  the  employee  was  suffering  from  a  diseased  condition  which 
was  aggravated  by  the  accidental  injury,  and  the  death  was  proxi- 
mately  due  to  an  injury  arising  out  of  the  employment.47 

In  an  action  to  recover  compensation  for  appendicits  alleged 
to  have  been  caused  by  a  severe  shaking  during  the  course  of  em- 
ployment, it  was  held  that  the  appendicits  was  directly  traceable 
to  an  accidental  injury  arising  out  of  the  employment.48 

An  employee  received  an  electric  shock  in  the  course  of  his  em- 
ployment, and  a  doctor  testified  that  his  subsequent  death  was  due 
to  septic  peritonitis,  caused  by  a  lesion  of  the  intestines  resulting 
from  the  electric  shock.  But  the  commission  held  that  the  pre- 
ponderance of  the  evidence  tended  to  establish  that  the  death  was 
proximately  caused  by  acute  appendicitis,  and  therefore  was  not 
due  to  an  accident  arising  out  of  and  in  the  course  of  the  em- 
ployment.49 

A  carpenter  strained  himself  while  lifting  a  radiator  weighing 
300  pounds.  A  physician  testified  that  his  subsequent  death  was 
due  to  the  strain  causing  intestinal  obstruction  and  appendicitis. 
It  was  held  that  the  injury  arose  out  of  the  employment."0 

§  302.  Apoplexy. — Claimant  was  engaged  in  placing  heavy 
barrels  in  tiers  in  a  cooler.  After  lifting  a  heavy  barrel  he  com- 
plained of  a  severe  pain  in  his  head,  and  was  seized  with  a  stroke  of 
apoplexy.  It  was  contended  that  the  injury  suffered  was  not  due  to 
an  accident  arising  out  of  the  employment,  but  was  the  natural 
result  of  an  inherent  physical  defect  which  manifested  itself  while 
claimant  was  pursuing  his  regular  employment.  The  court  held 
that  claimant  had  sustained  an  accident,  and  that  the  accident 
arose  out  of  and  in  the  course  of  employment.51 

An  employee  engaged  in  making  bullion  suffered  from  paraly- 
sis due  to  a  cerebral  hemorrhage  and  rupture  of  a  small  blood- 

47.  Woods  v.  Wilson  Sons  &  Co.  Ltd.,  (1915),  W.  C.  &  Ins.  Rep.  285, 
8  B.  W.  C.  C.  288,  10  N.  C.  C.  A.  759. 

48.  Enman  v.  Dalzil,  50  Scot  L.  R.  143,  6  B.  W.  C.  C.  900. 

49.  Merriman  v.  Scovill  Mfg.  Co.,  1  Conn.  C.  D.  596. 

50.  McGuigan  v.  Maryland  Casualty  Co.,  1  Mass.  I.  A.  Bd.  438. 

51.  Fowler  v.  Risedorf  Bottling  Co.,  and  In  re  Zurich  General  Accident 
&  Liability  Ins.  Co.,  Ltd.,  175  N.  Y.  App.  Div.  224,  161  N.  Y.  S.  535,  14 
N.  C.  C.  A.  533. 

752 


ACCIDENT  ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    302 

vessel  ir  the  brain,  brought  on  by  long  hours  of  work  and  exces- 
sive hep*.  It  was  contended  by  defendant  that  the  bursting  of 
the  blood  vessel  was  due  to  a  clogging  of  the  blood  vessel  which 
resulted  from  a  diseased  condition  of  the  arteries.  The  applicant 
contended  that  it  was  due  to  a  diseased  condition  of  the  arteries 
which  would  likely  result  in  a  bursting  of  the  bloodvessel  when 
subjected  to  the  unusual  risk  of  long  hours  of  work  and  the  ex- 
cessive heat,  and  that  claimant  intended  to  do  the  long  hours  of 
work,  but  that  in  doing  so  he  did  not  anticipate  that  his  blood 
pressure  would  be  so  increased  as  to  result  in  a  rupture  of  a 
bloodvessel.  The  court  held  that  the  paralysis  was  due  to  the' 
bursting  of  the  bloodvessel,  which  bursting  was  caused  by  the  un- 
usual conditions  under  which  claimant  was  compelled  to  work. 
Therefore  the  injury  was  proximately  due  to  an  accident  arising 
out  of  and  in  the  course  of  the  employment.52 

A  collier,  who  was  performing  heavy  work,  was  suddenly  siezed 
with  apoplexy  and  died,  and  there  was  evidence  that  the  arteries 
were  in  such  a  degenerated  condition  as  to  be  likely  to  rupture 
at  any  time.  The  evidence  was  equally  consistent  with  a  finding 
that  an  accident  did  or  did  not  happen  and  the  court  held  that  the 
onus  of  proving  that  an  accident  occurred  in  the  course  of  and 
arising  out  of  the  employment  had  not  been  discharged.53 

An  employee,  whose  duties  included  prompt  action  on  his  part 
in  case  of  accidents,  died  from  apoplexy  while  rushing  to  the 
scene  of  an  accident  to  an  employee  who  was  not  in  the  employ- 
ment of  his  employer  but  who  was  performing  work  on  his  em- 
ployer's premises.  The  court  found  that  decedent's  duties  includ- 
ed his  prompt  attendance,  in  cases  of  any  accident  occurring  in 
the  works,  either  personally  or  by  telephonic  communication  with 
a  doctor.  Therefore  decedent  did  not  put  himself  outside  of  the 
scope  of  his  employment  in  going  to  the  aid  of  the  injured  em- 
ployee.8* 

52.  La  Veck  v.  Park  Davis  &  Co.,  190  Mich.  604,  157  N.  W.  72,  12  N. 
C.  C.  A.  825. 

53.  Barnabas  v.  Bersham  Colliery  Co.,  103  L.  T.  513.  55  Sol.  J.  63,  4  It. 
W.  C.  C.  119.  7  N.  C.  C.  A.  651. 

54.  AJtken  v.   Pinlayson,  Bousfleld    ft  Co.,  Ltd.,    (1914),  W.  C.  ft  Ins. 

753 
W.  a— 48 


§  302  WORKMEN'S  COMPENSATION  LAW 

The  applicant,  a  fireman  employed  on  a  steamer  while  in  the 
tropics,  went  to  work  in  a  coal  bunker  where  the  heat  was  in- 
tense. Later  he  was  found  outside  the  bunker  in  a  fit  which  accord- 
ing to  the  medical  testimony  resulted  from  a  hemorrhage,  but 
nothing  was  said  to  the  effect  that  the  hemorrhage  was  caused  by 
an  accident  arising  out  of  the  employment.  The  arbitrator  found 
that  the  hemorrhage  did  not  result  from  an  accident  arising  out 
of  the  employment,  and,  there  being  evidence  to  sustain  his  find- 
ing, it  was  not  disturbed  on  appeal.55 

Where  an  employee,  engaged  in  chasing  thieves  who  were 
carrying  off  his  employer's  property,  died  from  apoplexy  brought 
on  by  the  overexertion,  it  was  held  that  the  accident  arose  out  of 
and  in  the  course  of  his  employment.  "It  is  intimated  in  the  re- 
port of  the  Chief  Medical  Examiner  that  had  the  decedent  been 
in  good  physical  condition  he  would  not  have  died  from  the  ef- 
fects of  exertion.  Assuming  this  to  be  true  from  a  medical  stand- 
point, the  fact  remains  that  he  did  die,  that  the  cause  of  his  death 
was  cerebral  hemorrhage  or  apoplexy  and  that  it  was  brought  on 
by  overexertion.  While  the  decedent's  physical  condition  may 
have  been  and  doubtless  was  partly  responsible  for  his  death,  it 
was  the  exertion  and  excitement  engendered  by  the  pursuit  of  , 
the  two  theives  which  really  caused  the  decedent's  death."56 

Apoplexy  occurring  in  the  absence  of  an  accidental  injury  ag- 
gravating a  pre-existing  diseased  condition  or  bringing  on  the 
apoplexy  as  a  direct  result  of  the  injury,  cannot  be  said  to  be  a 
personal  injury  arising  out  of  the  employment.57 

A  fireman  fell  from  the  cab  of  a  locomotive  and  later  died  as 
the  result  of  a  hemorrhage  of  the  brain.  He  had  a  predisposition 
to  apoplexy.  It  was  held  that  there  was  sufficient  evidence  to 
justify  the  board  in  finding  that  the  death  was  due  to  the  acciden- 

Rep.  398,  (1914),  2  Sc.  L.  T.  27,  51  Sc.  L.  R.  653,  7  B.  W.  C.  C.  918,10  N. 
C.  C.  A.  485. 

55.  Olson  v.    "Dorsett"    (Owners  of),    (1913),  W.    C.  &   Ins.  Rep.  604, 
6  B.  W.  C.  C.  658. 

56.  In  re  Fair  Ohio  Ind.  Comm.,  (1914),  7  N.  C.  C.  A.  651. 

57.  Ledoux  v.  Employer's  Liab.  Assur.  Corp.,  2  Mass.  I.  A.  Bd.  493. 

754 


ACCIDENT   ARISING   OUT  OP   COURSE  OP  EMPLOYMENT.      §   304 

tal  fall,  and  therefore  due  to  an  accident  arising  out  of  the  em- 
ployment.58 

§  303.  Apprentice. — A  minor  was  employed  as  an  apprentice 
to  learn  to  run,  an  electric  elevator.  He  had  no  license,  so  he  was 
placed  under  the  tutelage  of  a  regular  operator.  After  a  weeks 
experience  he  operated  the  elevator  alone  and  took  the  elevator 
to  a  certain  floor,  left  it,  and  went  on  an  errand.  During  his  ab- 
sence the  elevator  was  moved,  and  when  he  returned  he  stepped 
through  the  door  and  fell,  sustaining  injuries.  He  settled  with 
his  employer  arid  his  settlement  was  approved  by  the  district 
court.  His  father  brought  this  action,  regarding  the  settlement 
as  a  nullity,  claiming  that  the  relation  of  master  and  servant  did 
not  exist  between  the  minor  and  the  defendant,  because  the  em- 
ployment was  illegal,  in  that  the  minor  was  prohibited  by  law 
from  operating  the  elevatoi  without  a  license.  In  affirming  a 
judgment  of  dismissal,  the  court  held  that,  as  the  minor  was 
working  as  an  apprentice,  his  employment  was  not  illegal  because 
he  had  no  license,  and  on  this  question  the  court  said:  "This 
disposes  of  the  case,  though  we  may  add  in  conclusion  that  sec- 
tion 34  of  the  compensation  act  (section  8230,  G.  S.  1913),  by 
which  the  statute  is  made  applicable  to  minors  'who  are  legally 
permitted  to  work  under  the  law  of  this  state,'  was  intended  to 
exclude  from  the  statute  minors  whose  employment  is  prohibited 
by  law.  Section  3848,  3871,  G.  S.  1913.  Plaintiff's  son  was  not  in 
this  class.  He  lawfully  could  be  employed  in  this  sort  of  work, 
if  qualified  and  possessing  the  necessary  license."59 

Where  an  apprentice  suffered  a  mutilation  of  his  hand,  and 
afterward  secured  work  at  reduced  compensation,  but  was  dis- 
charged for  misconduct,  the  court  refused  to  terminate  compen- 

58.  Peoria  Railroad  Terminal  Co.  v.  Industrial  Board.  279  111.  352.  15 
N.  C.  C.  A.  632.  116  N.  E.  651;  State  ex  rel  Geo.  D.  Taylor  &  Sons  v. 
District  Court  of  Ramsey  Co.  —Minn.  — .  (1920).  179  N.  W.  217,  6.  C.  L. 
J.  698. 

Note:  For  the  Courts  opinions  pertaining  to  the  accident  phases  of 
the  foregoing  cases  see  the  same  cases  §  142,  ante. 

K9.  Pettee  v.  Noyes.  133  Minn.  109,  157  N.  W.  995,  15  N.  C.  C.  A.  727. 

755 


§  304  WORKMEN'S  COMPENSATION  LAW 

sation  in  the  absence  of  a  showing  by  the  employer  cftat  other 
work  was  procurable.60 

A  night  watchman,  who  was  paid  for  this  work  only,  was  allow- 
ed to  study  the  firing  of  his  employer's  locomotive  after  work 
hours,  in  order  that  he  might  fit  himself  for  a  position  of  fireman 
when  a  vacancy  would  occur.  It  was  customary  to  have  men  fit 
themselves  in  this  way  so  that  the  company's  own  men  would  be 
qualified  for  advancement  when  vacancies  occurred.  It  was  held 
that  the  accident  arose  out  of  the  employment.61 

§  304.  Asphyxiation. — A  night  watchman,  when  intoxicated, 
neglected  his  duty  and  went  into  a  washroom  of  the  plant  to 
sleep,  lighted  the  gas  heater,  closed  all  openings  and  went  to 
sleep.  Later  he  was  found  asphyxiated.  The  court  held  that  de- 
ceased's conduct  placed  him  outside  the  scope  of  his  employment, 
and  that  his  death  was  not  due  to  an  accident  arising  out  of  the 
employment.62 

A  night  watchman,  who  was  employed  to  guard  gas  trenches, 
was  found  dead  in  a  place  where  the  gas  odor  was  very  strong. 
The  board,  in  the  absence  of  any  direct  evidence  as  to  the  cause 
of  the  death,  held  that  the  natural  inference,  deducible  from  the 
facts  shown,  was  that  deceased  came  to  his  death  through  acci- 
dental asphyxiation.  On  appeal  the  court  held  that  there  was  a 
presumption  that  deceased  did  not  commit  suicide.  In  the  absence 
of  evidence  to  the  contrary,  the  showing  that  deceased  was  where 
he  had  a  right  to  be  raised  a  presumption  that  death  was  due  to 
an  accident  arising  out  of  the  employment.63 

When  an  employee,  whose  duties  required  him  to  drain  water 
from  a  pipe  used  in  washing  gas,  was  found  dead  at  the  place 
where  he  performed  this  work,  and  the  medical  evidence  tended 
to  show  that  death  might  ensue  by  a  sudden  inhalation  of  such 

60.  Wilson  v.  Jackson  Stores  Ltd.,   (1905),  7  W.  C.  C.  122  C.  A. 

61.  Gardner  v.  Sierre  Nevada  Wood  and  Lbr.  Co.,  2  Cal.  I.  A.  C.  856, 
12    N.    C.  C.    A.  666. 

62.  Roebling's  Sons  Co.  v.  Indus.  Ace.  Comm.,  36  Cal.  App.  10,  171  Pac. 
987,  16  N.  C.  C.  A.  891,  2  W.  C.  L.  J.  38. 

63.  Manziano  v.  Public  Service    Gas.  Co.,  92  N.  J.  L.  322,  105  Atl.  484, 
18  N.    C.  C.    A.  1025, 

756 


ACCIDENT  ARISING  OUT  OF  COUBSE  OF  EMPLOYMENT.        §    304 

gas,  the  court  held  that  the  board  was  justified  in  finding  that 
the  accident  arose  out  of  the  employment.94 

A  laborer  was  found  in  a  test  room  asphyxiated  by  gas.  There 
was  no  evidence,  either  direct  or  circumstantial,  as  to  why  dece- 
dent entered  the  room.  It  was  held  that  the  burden  of  proving 
that  the  death  was  due  to  an  accident  arising  out  of  and  in  the 
course  of  the  employment  had  not  been  discharged.65 

An  employee  entered  a  wine  vat,  without  testing  for  gas,  and 
was  asphyxiated.  It  was  customary  to  test  for  gas  before  enter- 
ing. There  was  no  evidence  as  to  whether  or  not  a  test  had  been 
made.  The  court  held  that  the  evidence  was  not  sufficient  to  es- 
tablish such  willful  misconduct  on  the  part  of  deceased  as  to  pre- 
vent the  injury  from  being  considered  to  have  arisen  out  of  the 
employment."9 

Where  an  engineer  on  board  a  ship,  who  was  cautioned  against 
the  danger  of  asphyxiation  resulting  from  having  a  fire  in  his 
cabin  at  night,  did  light  one  on  a  cold  night  and  was  suffocated 
thereby,  it  was  held  that  the  necessity  of  having  a  fire  on  board 
the  ship  was  not  as  great  as  the  hazard  such  action  would  expose 
the  engineer  to,  and  that  it  was  unreasonable  conduct  on  his  part 
to  disregard  the  instructions,  therefore  the  accident  did  not  arise 
out  of  the  employment.97 

Where  a  traveling  salesman  was  asphyxiated  by  escaping  gas 
in  the  hotel  while  asleep,  his  death  was  due  to  an  ordinary  hazard 
of  living.and  was  not  due  to  an  accident  arising  out  of  and  in  the 
course  of  the  employment.98 

64.  Holnagle  v.  Lansing  Fuel  and  Gas.  Co..  200  Mich.   132,  166  N.  W. 
843.  1  W.  C.  L.  J.  1010,  17  N.  C.  C.  A.  788. 

65.  Gray  v.  Sopwlth  Aviation  Co.,  Ltd.,   (1918),  W.  C.  ft  Ins.  Rep.  237 
119  L.  T.  R.  194,  17  N.  C.  C.  A.  939. 

66.  United  States  Fidelity  ft  Guarantee  Co.    v.   Indus.  Ace.    Comm. 
of  Cal.,  174  Cal  616,  163  Pac.  1013.  15  N.  C.  C.  A.  149,  A  1  W.  C.  L.  J.  215. 

67.  Edmunds  v.  S.  S.  Peterson,  28  T.  L.  R.  18,  5  B.  W  C.  C.  157. 

68.  Reed  v.  Booth   ft  Platt  Co.,  1  Conn.  Comp.   Dec.  121;     Kehoe  v. 
Consolidated   Telegraph  ft  Elect.    Subway  Co.,  176  N.  Y.  App.  Div.    84. 
165  N.  Y.  S.  481,  16  N.  C.  C.  A.  640;    Kass  v.  Hlrschberg.  Schultz  ft  Co  . 
191  N.  Y.  App.  Div.  300,  (1920).  181  N.  Y.  S.  35,  5  W.  C.  L   J.  879. 

t 

757 


§  305  WORKMEN'S  COMPENSATION  LAW 

In  the  same  kind  of  case  the  New  York  Court  said:  "The  act 
provides  (section  3,  subd.  7),  that  'injury'  and  'personal  injury' 
mean  only  accidental  injuries  arising  out  of  and  in  the  course  of 
employment,  and  surely  the  accident  here  under  consideration 
did  not  arise  out  of  the.  employment.  The  accident  arose  out  of 
the  negligence,  not  of  the  master,  but  of  a  third  party.  It  wa's  not 
a  whit  different  than  an  accident  of  the  same  character  which 
might  have  happened  at  the  decedent's  own  home  after  his  days 
work  was  done.  While  the  statute  as  amended  by  chapter  622  of 
the  laws  of  1916,  has  enlarged  the  liability  of  the  employers,  it 
has  not  had  the  effect  of  insuring  their  employees  generally 
against  those  accidents  which  are  common  to  mankind ;  It  is  only 
as  to  accidents  'arising  out  of  and  in  the  course  of  employment.' 
Matter  of  Dose,  Moehle  Lithographic  Co.,  221  N.  Y.  401,  405,  117 
N.  E.  616. 

"The  act  does  not  afford  compensation  for  injuries  or  misfor- 
tunes which  merely  are  comtemporaneous  or  coincident  with  the 
employment,  or  collateral  to  it.  Not  every  diseased  person,  suffer- 
ing a  misfortune  while  at  work  for  an  employer,  is  entitled  to 
compensation.  The  personal  injury  must  be  the  result  of  an  em- 
ployment and  flow  from  it  as  the  inducing  proximate  cause.  The 
direct  connection  between  the  personal  injury  as  a  result  and  the 
employment  as  its  proximite  cause  must  be  proved  by  the  facts 
before  the  right  to  compensation  springs  into  being.  Madden 's 
Case,  222  Mass.  487,  111  N.  E.  379,  L.  R.  A.  1916D,  1000 ;  Matter 
of  Alpert  v.  Powers,  223  N.  Y.  97,  101,  102,  119  N.  E.  229.  The  ac- 
cident here  under  consideration  had  no  relation  to  the  employ- 
ment, the  decedent  was  not  doing  anything  for  the  employer  at 
the  time  of  the  accident,  and  there  is  no  ground  for  this  award."69 

§  305.  Assisting  A  Fellow  Employee,  Employee  of  Another  Em- 
ployer or  A  Stranger. — Where  a  janitress  in  a  hotel  undertook 
to  clean  a  light  well,  which  was  part  of  the  duties  of  another 
janitor,  and  was  injured  by  a  fall  which  resulted  in  her  death,  the 

69.     Kass    v.   Hirschberg,   Schultz   &   Co.,   191  App.    Div.   300,     (1920), 
181  N.  Y.  Supp.  35,  5  W.  C.  L.  J.  »79. 
758 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    305 

court  held  that  in  attempting  to  clean  the  light  well,  which  was 
an  undertaking  merely  to  assist  another  employee,  who  was  ill, 
and  a  very  dangerous  task  for  a  woman  to  perform,  deceased 
placed  herself  outside  the  scope  of  her  employment,  and  was  not 
injured  by  an  accident  arising  out  of  her  employment,  even 
though  the  work  attempted  would  have  been  in  the  interest  of  tl*e 
employer.70 

An  employee  lived  in  a  house  rented  from  his  employer.  His 
wife  conducted  a  restaurant  for  the  defendant  in  its  office  build- 
ing. She  requested  her  husband  to  carry  a  basket  of  linen  from 
the  house  to  the  restaurant,  and  while  going  from  his  residence 
to  the  street  he  came  in  contact  with  a  live  wire  and  was  killed. 
Plaintiff  received  a  judgment  in  an  action  at  law.  On  appeal  it 
was  contended  that  deceased  was  employed  to  assist  his  wife  and, 
therefore,  in  carrying  the  linen  he  was  doing  his  master's  work. 
Deceased's  duties  were  those  of  a  janitor  in  the  building.  The 
evidence  was  conflicting  as  to  whether  deceased's  contract  of  em- 
ployment included  the  assisting  of  his  wife  in  her  work.  The 
court  found  that  deceased  was  not  in  the  course  of  his  employ- 
ment, and  therefore  the  controversy  did  not  come  under  the  com- 
pensation act.71 

A  load  of  coal  became  mired,  and  the  team  hitched  thereto  was 
unable  to  remove  it.  The  driver  requested  plaintiff,  a  passerby, 
to  assist  in  removing  it  and  while  so  doing  he  was  injured.  It 
was  held  that  the  driver  had  implied  authority  to  employ  some- 
one for  this  temporary  purpose,  and  the  plaintiff  became  the  em- 
ployee of  the  coal  company  for  the  purpose  of  rendering  this  as- 
sistance and  was  entitled  to  the  protection  of  the  Minnesota  Work- 
men's Compensation  Act.72 

70.  Williamson  v.  Indus.  Ace.  Comm.  of  Cal.,  177  Cal.  715,  171  Pac.  797, 
16  N.  C.  C.  A.  884. 

71.  Murphy  v.  Ludlum  Steel  Co.,  182,  App.  Div.  139,  169  N  .Y.  S.  781, 
16  N.  C.  C.  A.  901,  1  W.  C.  L.  J.  1122. 

72.  State  v.  Ramsey  County,  138  Minn.  416.  165  N.  W.  268,  1  W.  C.  L. 
J.  642;    In  re  Lev!  Chance,  3rd  A.  R.  If.  S.  C.  C.  166;    In  re  Geo.  Boiler, 
3rd  A.    R.  U    S.  C.  C.  167. 

759 


§  305  WORKMEN'S  COMPENSATION  LAW 

An  employee  was  injured,  after  receiving  his  wages,  while  as- 
sisting in  placing  a  threshing  machine  on  the  road  after  the  com- 
pletion of  a  job.  The  evidence  tended  to  show  that  it  was  custom- 
ary for  the  employees  who  followed  the  machine  from  job  to  job 
to  assist  in  placing  the  machine  cut  on  the  highway  after  finish- 
ing a  job.  The  court  held  that  applicant's  contract  of  service  an- 
ticipated a  compliance  with  this  established  custom,  and  therefore 
the  accident  arose  out  of  his  employment.73 

"Where  a  carpenter  employee  in  a  laundry  was  killed  while  per- 
forming work  for  one  of  the  individual  stockholders,  according 
to  a  usual  custom  of  the  laundry,  and  at  the  time  of  his  death  he 
was  acting  under  the  express  directions  of  the  officers  of  the  cor- 
poration, it  was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment.74 

Where  an  employee  of  a  corporation,  who  was  loaned  to  a  di- 
rector to  do  some  work  for  the  director  on  his  own  premise  and 
at  his  direction  and  supervision,  was  injured  while  performing 
this  work,  it  was  held  that  the  injury  did  not  arise  out  of  and  in 
the  course  of  the  employment.76 

Where  an  employee  was  injured  while  making  deliveries  of 
cigars  for  the  accommodation  of  his  employer  after  work  hours, 
it  was  held  that  the  injury  arose  out  of  the  employment.  The 
court  said:  "The  employee's  act  was  not  mere  friendship,  it  was 
the  relation  of  employer  and  employee,  that  led  one  to  request  the 
service  and  the  other  to  render  it.  If  such  service  is  not  incidental 
to  the  employment  within  the  meaning  of  the  statute,  loyalty  and 
helpfulness  have  earned  a  poor  reward."78 

Two  butcher  boys  were  employed  on  a  wagon,  and  one  fell  off 
and  was  injured.  A  bystander  volunteered  to  ride  home  on  the 
wagon  in  order  to  assist  in  caring  for  the  injured  boy.  On  the 
way  home  the  volunteer  bystander  fell  off  and  was  injured,  and 

73.  Newson  v.  Burstall,  (1915),  W.  C.  &  Ins.  Rep.  16,  15  N.  C.  C.  A.  218. 

74.  English  v.  Cain,  2  Cal.   I.  A.  C.    399,  11    N.  C.    C.  A.  376. 

75.  In  re  Jones,  1  Bull.  Ohio  Ind.  Comm.  57;    Carnahan  v.  Mailometer 
Co.,  201   Mich.  173,  167  N.  W.  9,  1  W.    C.  L.   J.  1045. 

76.  Grieb  v.  Hammerle,  181   N.  Y.  App.  Div.  911,   118  N.    E.  805,  222 
N.  Y.  382,  1  W.  C.  L.  J.  846. 

760 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    305 

sought  to  hold  the  master  liable  on  the  ground  of  implied  authori- 
ty of  the  driver  to  hire  a  person  in  the  case  of  an  emergency.  The 
court  held  that  there  was  no  such  implied  authority,  and  dismiss- 
ed the  case.77 

Where  an  employee  was  injured  while  posting  a  letter  for  his 
employer,  although  the  regular  duties  of  the  employee  did  not  in- 
clude such  services,  it  was  held  that  the  accident  arose  out  of  the 
employment.78 

Deceased,  a  chief  clerk  in  the  freight  auditing  department  of  a 
railroad  office,  was  injured  while  enroute  to  another  office  to  as- 
sist in  straightening  out  the  books  of  the  latter  office.  On  the  way 
an  intending  passenger  was  injured  and  deceased  alighted  to  ren- 
der assistance.  "When  the  injured  party  was  cared  for  deceased 
attempted  to  board  the  moving  train  and  fell,  sustaining  injuries 
resulting  in  his  death.  In  reversing  an  award  for  compensation, 
and  holding  that  the  accident  did  not  arise  out  of  deceased's  em- 
ployment, the  court  said:  "The  transcript  of  evidence  will  be 
searched  in  vain  to  discover  one  word  arising  to  the  dignity  of 
evidence,  to  establish  the  statement  that  the  deceased  alighted 
from  the  train  'to  be  available  in  case  his  services  should  be  use- 
ful,' or  that  if  he  did  that  it  was  any  part  of  his  express  or  im- 
plied duties  as  an  employee  of  the  defendant  to  do  so.  The  testi- 
mony of  the  president  and  general  manager  of  the  road  was  taken 
at  great  length.  That  testimony  is  positive  and  uncontradicted, 
that  there  was  no  rule,  written  or  unwritten,  and  no  custom, 
whereby  employees  riding  upon  a  train  other  than  and  outside  of 
the  train  crew  were  called  upon  or  expected  to  enter  into  an  in- 
vestigation in  case  of  an  accident,  to  secure  the  names  of  witness- 
es, or  to  perform  any  like  service."79 

An  employee,  whose  duties  were  to  shovel  gravel,  exchanged 
work  with  a  teamster  who  was  out  in  the  rain  and  had  become 

77.  Houghton  v.  Pilkington,  107   L.  T.  R.  235. 

78.  Wooley  v.  Geneva  Cutlery  Co.,  181  N.  Y.  App.  Div.  909,  167  N.  Y.  S. 
1134;    Swanick  v.  Saratoga  Milling  &  Grain  Co.,  181  N.  Y.  App.  Div.  911, 
167   N.  Y.  S.  1129  (N.  Y.  Bull,  for  June,   1918). 

79  Northwestern  Pac.  R.  Co.  v.  Indus.  Ace.  Comm.,  174  Cal.  297, 
153  PUG.  1000,  15  N.  C.  C.  A.  219. 

761 


§  305  WORKMEN'S  COMPENSATION  LAW 

wet.  While  driving  the  gravel  wagon  the  team  ran  away,  threw 
applicant  from  the  wagon  and  injured  him.  The  board  found  that 
there  was  a  custom  among  the  employees  to  exchange  work  and 
awarded  compensation.  The  court  on  appeal  held  that  in  ex- 
changing work  applicant  clearly  placed  himself  outside  the  scope 
of  his  employment,  unless  such  custom  was  known  and  assented 
to  by  the  employer.  The  court  further  found  that  there  was  no 
evidence  to  justify  a  finding  that  the  custom  existed  to  the  know- 
ledge of  the  employer,  and  therefore  applicant's  injury  did  not 
arise  out  of  the  employment.80 

A  company  employed  a  night  watchman  to  look  after  an  en- 
gine, to  keep  it  alive,  and  have  it  ready  for  the  workmen  in  the 
morning.  The  superintendant  took  the  engine  on  a  certain  night 
and  relieved  the  watchman.  Another  watchman  was  employed  to 
care  for  a  steam  shovel,  and  on  this  night  he  requested  deceased 
to  relieve  him  while  he  visited  his  folks.  Deceased  complied  with 
the  request  and  was  murdered  while  on  watch.  The  evidence  ten- 
ded to  snow  that  deceased  was  acting  without  permission  on  this 
occasion,  but  that  such  permission  would  have  been  granted  if 
applied  for.  The  court,  in  annulling  an  award,  said  that  deceas- 
ed was  acting  without  even  the  implied  authority  of  his  employ- 
er, assuming  new  duties  when  there  was  no  emergency  for  doing 
so,  and  going  to  a  place  where  he  had  no  right  to  be.  Therefore 
"our  conclusion  is  that  the  injury  which  caused  the  death  of  de- 
ceased did  not  arise  out  of  nor  in  the  course  of  his  employment. 
Indeed,  the  case  presented  is  precisely  the  same  as  though  de- 
ceased had  at  the  close  of  his  night's  labor  repaired  to  his  home 
and  while  awaiting  a  return  of  the  time  to  assume  his  duties  he 
had  been  murdered."81 

A  general  laborer  about  a  canning  plant  sustained  injuries 
which  resulted  in  his  death,  when  he  responded  to  an  elevator 
operator's  call  for  assistance.  Deceased's  duties  necessitated 
that  he  operate  the  elevator  himself  at  times,  but  at  the  time  of 

80.  Modoc  County  v     Indus.  Ace.   Comm.  of  Cal.,  32    Cal.   App.    548, 
163  Pac.  C85,   15  N.  C.  C.  A.  280. 

81.  Robert  Sherer  and  Co.  v.  Indus.  Ace.  Comm.,  175  Cai.  615,  166  Pac. 
318  ,15  N.  C.  C.  A.  281. 

762 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    306 

the  accident  another  person  was  in  charge  of  the  elevator.  In 
affirming  an  award,  the  court  said:  "It  is  doubtless  true  that  the 
facts  would  not  support  a  judgment  under  the  common  law,  nor 
under  the  Employers'  Liability  Act.  *  *  *  (Labor  Law  (Consol. 
L.  c.  31;  L.  1909,  c.  36)  art.  14,  as  amended  by  L.  1910,  c.  352.) ; 
but  the  workmen's  compensation  act  contemplates  charging  the 
industrial  life  of  the  state  with  the  burden  of  accidents  to  such 
industry,  within  the  limits  fixed  by  the  act,  and  we  are  not  pre- 
pared to  hold  that  a  common  laborer  is  not  in  'the  course  of  his 
employment'  when  he  steps  aside  from  his  immediate  employ- 
ment to  give  an  incidental  aid  to  a  fellow  employee  in  the  opera- 
tion of  a  freight  elevator,  which  is  operated  in  common  by  all  of 
the  employees.  It  does  not  appear  that  the  elevator  had  been 
broken  or  damaged ;  merely  that  it  had  ceased  to  respond  to  the 
operating  cables,  and  to  say  that  a  man  who  is  at  work  near  the 
point  may  not  lend  a  hand  in  starting  this  elevator  without  sacri- 
ficing his  rights  under  the  law  is  too  narrow  a  construction  to 
apply  in  the  construction  of  the  statute.  If  the  decedent  had 
himself  been  using  the  elevator  as  Kelley  was  doing —  and  this 
was  among  his  duties — there  would  have  been  no  doubt  of  his 
being  protected  while  trying  to  start  the  elevator,  even  though 
Hills  Bros.  Company  (defendant)  had  employed  an  engineer  to 
make  repairs,  and  no  good  reason  suggests  itself  why  he  might 
not  have  left  his  boiling  pots  for  a  few  moments  to  aid  a  fellow 
laborer  in  an  effort  to  start  this  same  elevator."82 

Where  an  employee  was  caught  in  a  cave-in  and  killed  when 
he  sought  to  rescue  an  employee  of  another  contractor  from  danger, 
it  was  held  that  the  accident  arose  out  of  the  employment.8* 

"VVhere  an  employee  attempted  to  rescue  fellow  employee's  from 
an  accident  where  many  were  killed,  and  became  insane  as  a 
result  of  the  mental  and  emotional  shock,  the  commission  found 

82.  Martucd  v.  Hills  Bros.  Co.,  171  N.  Y.  App.  Dlv.  370.  156   N.  Y.  8. 
833.    15  N.  C.  C.  A.  282. 

83.  Mihaica  v  .Mlagenovich  &  Gillespie.  1  Cal.  Ind.  Ace.   Com  in.  Dec.. 
(1914),   174,   10  N.  C.   C.  A    47,'. 

763 


§  305  WORKMEN'S  COMPENSATION  LAW 

that  the  insanity  was  due  to  an  accident  arising  out  of  the  em- 
ployment.84 

A  laborer  in  a  brick  supply  company  responded  to  a  fellow  em- 
ployee's request  for  assistance  in  placing  a  derailed  car  back  on 
the  track,  and  was  injured  while  so  doing.  No  one  in  authority 
commanded  applicant  to  assist  in  the  undertaking,  and  there  was 
no  one  present  to  supervise  the  work.  It  was  held  that  the  acci- 
dent arose  out  of  and  in  the  course  of  the  employment.85 

Deceased,  a  bobbin  stripper,  left  his  machine  to  remove  waste 
that  had  accumulated  on  another's  machine,  and  in  doing  so 
sustained  the  injuries  that  resulted  in  his  death.  The  board  award- 
ed compensation,  stated  that  it  disbelived  all  the  testimony  as  to 
the  circumstances  surrounding  the  accident,  and  found  that  de- 
ceased was  caught  in  a  belt  while  on  his  way  to  the  toilet.  On. 
appeal  this  finding  was  reversed,  the  court  holding  that  the  board 
could  not,  in  the  absence  of  evidence,  infer  that  the  belt  suddenly 
left  the  pulley  and  lashed  against  deceased  as  he  passed  on  his 
way  to  the  toilet,  and  therefore  there  was  no  evidence  to  sustain 
the  board's  finding  that  the  accident  arose  out  of  the  employment.88 

A  number  of  employees  of  different  employers  were  all  deliver- 
ing bags  of  glucose  at  one  warehouse.  A  custom  existed  that  where 
a  number  of  wagons  arrived  at  one  time,  all  the  employees  would 
join  in  assisting  to  unload  and  store  away  the  bags,  although  the 
employer's  only  agreed  to  deliver  the  bags  to  the  consignee's 
tackle.  The  carters  received  compensation  from  the  warehouse 
men  for  helping  to  store  the  bags.  Claimant  was  injured  while 
helping  to  unload  the  cart  of  another.  It  was  held  that  the  acci- 
dent did  not  arise  out  of  the  employment.87 

An  employee,  while  on  an  errand  for  his  employer,  stopped  to 
render  assistance  to  a  horse  which  had  been  overcome  by  the  heat. 
While  doing  so  the  horse  fell  upon  and  broke  the  leg  of  the  em- 

84.  Reich  v.  City  of  Imperial,  1  Cal.  I.  A.  C.  D.,   (1914),  337,  10  N.  C. 
C   A.  479;    Waters  v.  Wm.  J.  Taylor  &  Co.,  218  N.  Y.  248,  112  N.  B.  727. 

85.  Ferguson  v.  Brick  &  Supplies,  (1914),  7  B.  W.  C.  C.  1054. 

86.  In  re  Dube,  226  Mass.  591,  116  N.  E.  234,  15  N.  C.  C.  A.  283. 

87.  Wm.  Sinclair  v.  Carlton,  (1914),  Sc.  Ct.  of  Sess.  7  B.  W.  C.  C.  937. 

764 


ACCIDENT   ARISING   OUT  OP  COURSE  OP   EMPLOYMENT.      §   307 

ployee.  Tt  was  held  that  the  injury  was  not  sustained  in  the 
course  of  the  employment.88 

Where  a  laborer  was  injured  while  assisting  another  employee 
to  replace  a  belt  on  a  pulley,  it  being  none  of  the  special  duties 
for  which  applicant  was  engaged,  but  under  the  facts  found 
such  work  was  not  truly  outside  the  scope  of  his  employment,  the 
court  held  that  the  act  of  the  workman  was  a  natural  and  helpful 
intervention  in  the  conduct  of  his  master's  business,  and  accord- 
ingly the  accident  arose  out  of  and  in  the  course  of  the  employ- 
ment.89 

An  employee  offered  to  assist  his  superior  in  the  performance 
of  duties  which  were  clearly  the  duties  of  the  superiors,  and  his 
offer  was  accepted.  He  was  injured  while  so  doing.  The  court 
said  that  the  voluntary  offer  of  a  servant  to  make  himself  useful 
in  a  matter  not  covered  by  an  express  command,  where  such  offer 
is  accepted  by  the  superior,  although  not  by  an  approval  express- 
ed in  words,  it  cannot  be  said  that,  as  a  matter  of  law,  the  servant 
placed  himself  outside  the  scope  of  his  employment.90 

Where  a  carpenter  became  involved  in  a  fight  over  the  pro- 
tection of  his  property,  and  his  brother,  who  was  employed  by 
him,  went  to  his  assistance  and  while  he  was  keeping  others  off  was 
injured,  it  was  held  that  the  injury  did  not  arise  out  of  the  em- 
ployment, no  matter  how  commendable  his  actions  in  the  protec- 
tion of  his  brother  might  have  been."1 

Where  an  assistant  cutter  in  a  shirt  waist  factory  was  fatally 
\\numled  by  strikers  while  trying  to  save  his  employer  and  other 
employees  from  injury,  his  injury  arose  out  of  and  in  the  course 
of  the  employment.92 

88.  In  re  Verkamp,  1  Bull.  Ohio  Ind.  Comm.  123,  12  N.  C.  C.  A.    907. 

89.  Menzies  v.  McQuibban,  37  Sc.  L.  R.  526,  (1900),  10  N.  C.  C.  A.  480. 

90.  Miner  v.  Franklin    County    Tel.  Co.,  83«  Vt.  31 J.  75  Atl.    653,  26 
L.  R.  A.  (N.  S.)  1195. 

91.  Clark  v.  Clark,  189  Mich.  652,  155  N.  W.  507,11     N.  C.  C.  A.  240; 
Collins  v.  Collins,  (1907),  2  Ir.  Rep.  104,  6  N.  C.  C.  A.  1025;    In  re  G.  M. 
Armstead,  Op.  Sol.  Dep.  C.  &  L.  pg.  240. 

92.  Baum  v.  Indus.  Comm.,  288  XI11.  616,  123  N.  E.  625,  4  W.  C.  L.    f. 
357,  IS  N   ('.  C.  A.  1053. 

765 


§  305  WORKMEN'S  COMPENSATION  LAW 

A  master  mechanic  who  was  informed  that  one  of  his  employees 
was  attempting  to  p'ull  a  truck  out  of  a  ditch,  went  to  help  the 
employee,  and  while  on  the  way  was  struck  by  a  train  and  killed. 
It  was  held  that  the  death  arose  out  of  the  employment.93 

A  truck  driver  was  putting  wood  into  a  building  of  a  customer 
by  means  of  a  hand  elevator.  Something  went  wrong  with  the 
elevator  and  an  employee  of  the  customer  endeavored  to  fix  it, 
requesting  claimant's  assistance.  While  assisting  in  the  fixing  of 
the  elevator  a  splinter  flew  and  struck  him  in  the  eye.  It  was 
held  that  the  accident  arose  out  of  the  employment.94 

A  driver  of  a  milk  wagon  went  to  the  assistance  of  another  driver 
working  for  a  different  employer,  when  a  horse  of  the  latter  had 
fallen.  While  assisting  in  getting  the  horse  on  his  feet,  the  fallen 
horse  kicked  and  injured  him.  There  was  a  well  established 
custom,  known  to  the  employers,  that  the  milk  drivers  would  go 
to  the  assistance  of  one  another.  It  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment95 

Applicant,  a  steel  dresser,  was  instructed  by  his  superior  to 
assist  another  employee,  should  she  have  any  trouble  with  her 
machine.  She  called  upon  applicant  to  do  some  work  upon  her 
machine  and  while  adjusting  a  nut  he  fell  into  the  saw.  The 
court  held  that  the  accident  arose  out  of  applicant's  employment, 
for  he  was  doing  the  very  thing  lie  was  supposed  to  do,  and  al- 
though he  may  have  been  negligent  or  reckless,  his  conduct  was 
not  such  as  to  disentitle  him  to  compensation  for  the  injury  sus- 
tained.00 

A  forest  ranger,  shot  and  killed  while  assisting  a  sheriff,  upon 
request,  to  arrest  a  deserter  from  the  United  State  Army,  was 
awarded  compensation.97 

93.  Iu  re  Pennington,  Ohio  Ind.  Coirnn.,  (1915),  12  N.  C.  C.   A.  249. 

94.  Kaspar  v.  Clark  &  Wilkins  Co.,  (1916),  7,  N.  Y.  St.  Dep.  Rep.  454. 

95.  Niles  v.  Walnut  Grove  Creamery  Co.,  (1916),  3  Cal.  I.  A.  C.  305. 

96.  Cars  v.  Vickers,  Ltd.,  120  L.  T.  R.  465,  (1919),  18  N.  C.  C.  A.  1031; 

97.  In  re    Rudolph  E.   Mellenthin,  3rd  A.  R.  U.  S.  C.    C.  107. 
Note:  For  further  cases  on  this  subject  see  "Volunteers.'  Emergencies," 

and    "Accidents    to    employees    whose    conduct    while    performing 
duties  for  the  master  places  them  outside  the  scope  of  employment." 
766 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.       §    306 

The  court  in  holding  that  an  accident  did  not  arise  out  of  the 
employment -said :  "Defendant  was  an  employer  and  was  under 
the  Compensation  Act  and  was  engaged  in  the  conduct  of  his 
business.  Plaintiff  and  his  employer  were  likewise  under  the 
Compensation  Act.  Plaintiff  was  driving  an  automobile  belonging 
to  his  employer.  The  automobile  had  been  assigned  to  another 
employee  of  the  same  employer,  but  one  doing  business  in  other 
territory,  and  was  being  taken  by  plaintiff  from  a  railroad  station 
at  the  request  of  this  fellow  employee  and  solely  as  an  accommo- 
dation to  him.  The  evidence  sustains  a  finding  that  the  accident 
did  not  arise  in  the  course  of  plaintiff's  employment  and  that  the 
case  is  not  within  the  third  party  provision  of  the  Minnesota 
Compensation  Act.08 

Whore  one  of  two  brothers  who  were  working  together  was  di- 
rected to  fill  a  tank  with  wax  from  an  oil  room,  the  death  of  the 
other  while  assisting  without  having  been  expressly  ordered  to  do 
so,  was  held  to  have  arisen  out  of  the  employment.00 

§  306.  Bite  of  Animals. — An  employee  was  bitten  by  a  factory 
watch  dog  while  performing  his  duties,  and  brought  an  action 
at  law.  A  judgment  in  plaintiff's  favor  was  reversed,  because  it 
did  not  appear  clearly  that  the  compensation  act  was  not  applicable. 
After  remarking  that  because  of  the  lapse  of  time  it  would  be 
presumed  that  the  dog  remained  on  the  premises  with  the  permission 
of  the  defendant,  the  court  said:  "There  is  no  doubt  that  the 
plaintiff  was  engaged  in  performing  the  duties  of  his  employment 
at  the  time  he  was  bitten.  The  presence  of  the  dog,  with  defend- 
ant's implied  knowledge  and  consent,  was  one  of  the  physical 
conditions  of  the  plant  under  which  the  defendant  required  the 
plaintiff  to  perform  his  duties  The  mere  fact  that  the  direct 
cause  of  the  injury  was  animate,  rather  than  inanimate,  does  not 
alter  the  result ;  nor  in  this  view  can  I  see  any  force  in  the  suggestion 
that  the  dog  was  not  especially  kept  as  a  watchdog,  or  for  some 
similar  purpose  (though  I  think  the  proof  showed  that  it  was  so 
employed.)  The  right  of  the  plaintiff  to  a  recovery  does  not, 

98.  Gibbs  v.  Almstrom,  —  Minn.  — ,   (1920),  176  N.  W.  173,  5  W.  C. 
L.  J.  541. 

99.  Milne  v.  Sanders,  —  Tenn.  — ,  (1921)  228  8.  W.  702. 

767 


§  307  WORKMEN'S  COMPENSATION  LAW. 

on  any  theory  of  which  I  am  made  aware,  depend  upon  the 
comparative  usefulness  to  the  employer's  business  of  the  immed- 
iate cause  of  the  injury."1 

A  workman,  while  eating  lunch,  was  bitten  by  a  cat,  which  was 
kept  about  the  stables.  The  bite  resulted  in  blood  poisoning.  It 
was  held  that  the  accident  arose  out  of  the  employment.2 

Where  a  workman  while  attending  to  his  duties  was  bitten  by  a 
mad  dog,  it  was  held  that  the  injury  occurred  during  the  course 
of  the  employment,  and  compensation  was  awarded.3 

Claimant,  while  returning  to  work  from  dinner,  was  bitten  by 
a  mad  dog.  It  was  held  that  the  accident  did  not  arise  out  of  the 
employment.4 

Where  a  brewery  employee,  whose  duties  included  delivering 
beer  to  customer's  homes,  was  bitten  by  a  bulldog  while  making 
a  delivery,  it  was  held  that  he  had  sustained  an  injury  arising 
out  of  the  employment.5 

Injury  by  dog  bite,  while  one  employed  to  deliver  packages  is 
making  a  delayed  delivery  in  the  morning,  while  on  his  way  be- 
tween his  home  and  the  place  where  the  vehicle  utilized  by  him 
in  his  work  is  stored,  to  procure  it  for  his  day's  work,  is  held  to 
arise  out  of  the  employment  within  the  meaning  of  the. Utah  Work- 
men's Compensation  Act.6 

§  307.  Bites  and  Stings  From  Insects  and  Reptiles. — An  em- 
ployee suffered  from  infection  following  insect  bites.  About  two 
years  later  he  died  from  heart  trouble  and  septicaemia.  Applicant 
contended  that  the  death  was  due  to  the  infection  following  the 
insect  bites.  Medical  testimony  was  to  the  effect  that  death  was 
not  caused  by  such  infection,  as  the  effect  of  the  insect  stings 
had  passed  off  very  rapidly,  since  the  infection  penetrated  no  deeper 

1.  Brone  v.  Brambach  Piano  Co.,  101  N.  Y.  Misc.  669,  167  N.  Y.  S.  933, 
15  N.  C.  C.  A.  229;    Hapelman  v.  Poole,  (1908),  25  T.  L.  R.  155,  2  B.  W. 
C.  C.  48. 

2.  Rowland  v.  Wright,  (1908),  1  B.  W.  C.  C.  192. 

3.  Re  E.  E.  Bailey,  Op.  Sol.  Dep.  C.  &  L.  p.  232. 

4.  Re  Alexander  Green,  Op.  Sol.  Dep.  C.  &  E.  p.  223. 

5.  Re  Wm.  Miller,  1  Bull.  Ohio  Ind.  Com.  789. 

6.  Chandler  v.  Indus.  Comm.,  —  Utah  — ,  184  Pac.  1020. 

768 


ACCIDENT  ARISING  .OUT  OP  COURSE  OP  EMPOYMENT.        §    308 

than  the  surface  of  the  body.  The  board  found  that  the  death  was 
not  due  to  an  accident  arising  out  of  the  employment.7 

Bites  by  poisonous  insects,  reptiles,  and  animals  are  industrial 
accidents  only  where  the  injury  arises  out  of  and  in  the  course 
of  the  employment,  and  the  nature  of  the  employment  exposes  the 
employee  to  a  greater  hazard  of  being  bitten  because  of  the 
nature  of  the  employment.  So,  where  a  woman  employed  in  a 
cannery  was  bitten  by  a  spider  during  the  noon  hour  while  she 
was  eating  lunch,  it  could  not  be  held  that  she  sustained  an  injury 
arising  out  of  the  employment,  in  the  absence  of  evidence  that  her 
employment  exposed  her  to  a  risk,  of  being  bitten,  greater  than  the 
risk  common  to  the  public  at  large.8 

An  injury  to  a  workman,  who  was  stung  by  a  wasp  while 
driving  a  threshing  machine,  and  as  a  result  thereof  died  from 
blood  poisoning,  did  not  arise  out  of  the  employment,  but  was  a 
risk  to  which  the  employee,  as  well  as  all  others,  were  exposed  at 
all  times.8 

A  lady's  maid  was  sewing  in  a  room  when  a  cockshafer  flew  into 
the  room.  In  trying  to  drive  it  away,  she  injured  her  eye.  It 
was  held  that  the  accident  did  not  arise  out  of  the  employment.10 

A  "Spieler"  for  an  amusement  show  was  bitten  by  a  gila  monster 
that  he  was  exhibiting  to  induce  a  crowd  to  patronize  the  show. 
It  was  held  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment.11 

§  308.  Bone  Felon. — An  employee  developed  a  bone  felon 
while  putting  strips  in  metal  frames  by  the  use  of  pliers.  The  felon 

7.  Campbell  v.  Aetna  Life  Ins.  Co.,  2  Mass.  Wkinn.  Comp.  Cas.  701,  11 
N.  C.  C.  A.  607. 

8.  Goodwin  v.  Libby  McNeill  &  Libby,  2  Cal.  I.  A.  C.  D..  (1915).  211, 
10  N.  C.  C.  A.  275;   Sterling  v.  J.  B.  Inderredian  Co.,  2  Cal.  I.  A.  C.  D., 
(1915),  172,  10  N.  C.  C.  A.  276. 

9.  Amys  v.  Barton,   (1912),  1  K.  B.  40,  3  N.  C.  C.  A.  281.  |1912),  W. 
C   &  Ins.  Rep.  22,  5  B.  W.  C.  C.  117. 

10.  Craske  v.  Wigan,  2  B.  W.  C.  C.  35,  (1909). 

11.  Merritt  v.  Clark  &  Snow,  2  Cal.  Ind.  Ace.  Com.  910,  12  N.  C.  C.  A. 
474. 

769 

W.  C.— 19 


§•  309  WORKMEN'S  COMPENSATION  LAW 

was  a  gradual  development  from  the  continuous  us  of  the  pliers. 
In  denying  that  the  claimant's  injury  was  due  to  an  accident 
arising  out  of  the  employment,  the  court  said:  "In  the  instant 
case  the  workman  was  doing  the  work  he  was  employed  to  do, 
had  done  for  nearly  six  years,  in  the  way  he  was  employed  to  do 
it,  and  in  the  way  it  had  been  done  by  him  for  a  long  time.  That 
the  work  done  by  a  laborer  one  day  is  harder  than  on  other  days 
is  not  an  accident  within  the  meaning  of  the  act.  There  is  no 
evidence  in  the  record  of  the  intervention  of  any  untoward  or 
accidental  happening  producing  the  injury.  There  was  no  blow 
or  sudden  strain.  The  felon  was  developed  by  the  continuous  use 
of  the  pliers."12 

§  309.  Brights  Disease. .  — An  employee  was  injured,  and  later 
developed  diabetes.  There  was  no  evidence  that  claimant  was 
suffering  from  the  disease  prior  to  the  accident,  but  on  the  con- 
trary the  evidence  showed  that  he  was  a  strong  healthy  man.  The 
board  found  that  the  disease  was  due  to  the  accidental  injury 
and  awarded  compensation.  On  appeal  the  court  held  that  the 
finding  of  the  board  was  not  based  on  mere  conjecture,  in  view 
of  the  evidence  that  prior  to  the  accident  claimant  was  a  strong 
healthy  man.13 

An  employee  was  injured,  and  five  days  later  developed  acute 
Brights  disease,  but  there  was  no  blood  in  the  urine  or  any  other 
indication  of  physical  injury.  It  was  held  that  there  was  no  evi- 
dence that  the  injury  was  the  cause  of  the  Bright 's  disease,  and 
further  the  medical  testimony  was  to  the  effect  that  acute  Bright 's 
disease  is  probably  never  due  to  traumatic  origin.  Therefore  the 
disease  was  not  due  to  an  accidental  injury  arising  out  of  the  em- 
ployment.14 

An  employee  suffered  an  accidental  strain  while  pulling  burlap, 
and  later  developed  Bright 's  disease.  The  evidence  showd  that 

12.  Perkins  v.  Jackson  Cushion  Spring  Co.,  206  Mich.  98,  (1919),  172 
N.  W.  374. 

13.  Balzer  v.  Saginaw  Beef  Co.,  199  Mich.  374,  165  N.  W.  758,  15  N. 
C.  C.  A.  645. 

14.  Husvick  v.  Simms,  1  Cal.  I.  A.  C.  D.  266. 
770 


ACCIDENT   ARISING   OUT  OP  COURSE  OF  EMPOYMENT.        §    310 

claimant  was  suffering  from  all  the  symptoms  of  Bright 's  disease, 
including  a  diseased  condition  of  the  heart,  lungs,  and  kidneys 
which  had  no  causal  connection  with  the  injury.  It  was  held  that 
the  evidence  was  insufficient  to  show  that  the  disease  was  caused 
by  an  injury  arising  out  of  the  employment.15 

A  ship's  cook,  who  was  suffering  from  Bright 's  disease  necessi- 
tating frequent  micturition,  was  last  seen  in  the  ships  galleys, 
and  would  have  to  step  outside  to  reach  a  urinal  upon  a  deck 
guarded  by  a  railing.  The  seas  were  rough.  It  was  held  that  there 
was  no  evidence  sufficient  to  prove  that  his  disappearance  was  due 
to  an  accident  arising  out  of  the  employment.10 

An  employee  was  furnished  with  boots  by  his  employer,  and  the 
boots  produced  an  abrasion  upon  his  heel.  Germs  entered  through 
this  abrasion  and  infection  followed,  causing  Bright 's  disease. 
It  was  held  that  the  infection  was  due  to  the  accidental  injury 
arising  out  of  the  employment.17 

§  £UO.  Bums. — An  employee  suffered  an  injury  to  his  hand  in 
the  course  of  his  employment,  and  had  it  bandaged  by  an  agent  of 
the  employer,  who  poured  turpentine  over  the  bandage.  Later, 
when  the  employee  endeavored  to  light  a  cigarette,  the  saturated 
bandage  became  ignited  and  his  hand  was  severely  burned.  The 
court  held  that  such  acts  as  are  necessary  to  life,  comfort,  and 
convenience  of  the  workman  while  at  work,  though  personal  to  him- 
self, are  incidental  to  the  service  and  an  injury  sustained  while 
performing  any  of  them  arises  out  of  the  employment.18 

Where  a  guard  was  severely  burned  in  a  wreck,  which  occurred 
uhile  he  was  riding  on  his  employer's  train  for  his  own  purposes 
during  his  off  hours,  it  was  held  that  the  accident  did  not  ariv 
out  of  and  in  the  course  of  the  employment.10 

An  employee  in  a  hospital  sustained  severe  burns  when  he  was 
unable  to  escape  from  a  room  after  a  fire  had  broken  out,  because 

• 

15.  Lima  v.  Aetna  Life  Insurance  Co.,  2  Mass.  W.  C.  Cas.  800. 

16.  Burwash  v.  Leyland  &  Co.,  Ltd.,  (1912),  5  B.  W.  a  C.  663,  C.  A. 

17.  Wheadon  v.  Red  River  Lbr.  Co.,  1  Cal.  I.  A.  C.  (Part  II)  640. 

18.  Whiting  Mead  Commercial  Co.  v.  Indus.  Ace.  Comm.,  178  Cal.  505, 
173  Pac.  1105,  2  W.  C.  L.  J.  746. 

19.  Pierson  v.  Interborough  Rapid  Transit  Co..  102  N.  Y.  Misc.  130,  168 
N.  Y.  S.  425,  16  N.  C.  C.  A.  885. 

771 


§  311  WORKMEN'S  COMPENSATION  LAW 

of  the  alleged  serious  and  wilful  misconduct  of  the  superintendant 
in  charge,  and  claimed  double  compensation.  The  claim  for  double 
compensation  was  not  allowed  because  of  the  failure  to  sustain 
the  allegation  of  wilful  misconduct.  Compensation  for  the  actual 
disability  was  awarded.20 

Where  a  stenographer  was  burned  to  death,  when  her  means 
of  escape  was  cut  off  by  a  fire  on  the  lower  floor,  it  was  held 
that  her  death  was  caused  by  an  accident  arising  out  of  and  in 
the  course  of  the  employment.21 

An  employee  fainted  after  a  quarrel  with  her  employer.  Other 
employees  threw  ammonia  in  her  face,  in  the  mistaken  belief  that 
it  was  water,  and  it  resulted  in  burns  and  ulcers.  It  was  held 
that  the  accident  arose  out  of  the  employment.22 

Where  a  carpenter,  who  was  subject  to  dizzy  spells,  suffered  from 
an  attack  of  dizziness  while  cooking  lunch,  and  as  a  result,  laid 
his  hand  upon  a  hot  stove,  it  cannot  be  said  that  the  injury  was 
due  to  an  accident  arising  out  of  the  employment.23 

An  employee  burned  as  the  result  of  carrying  matches  where 
there  was  no  express  provision  against  such  practice,  although 
smoking  was  prohibited,  cannot,  as  a  matter  of  law,  be  said  to  be 
without  the  protection  of  the  act.24 

§  311.  Cancer. — A  workman  sustained  an  injury  to  his  hand 
and  blood  poison  followed.  Two  years  later  he  sought  compensation 
for  a  cancer  on  his  penis  which,  he  contended  was  caused  by  his 
impaired  physical  condition  following  the  injury  to  the  hand.  The 
medical  testimony  failed  to  show  any  causal  connection  between  the 
injury  to  the  hand  and  the  cancer  which  developed  two  years 
later.  Therefore  the  injury  did  not  arise  out  of  the  employment.25 

^20.     Keane  v.  Employers  Liab.  Assur.  Corp.,  Ltd.,  1  Mass.  W.  C.  C.  193, 
(1913),  11  N.  C.  C.  A.  558. 

21.  Newark  Hair,  etc.  Co.  v.  Feldman,  89  N.  J.  L.  504,  99  AU.-602. 

22.  Saenger  v.  Locke,  (1916),  9  N.  Y.  St.  Dep.  Rep.  330. 

23.  Neuberger  v.  Third  Ave.  Ry.  Co.,  183  N.  Y.  S.  348,  (1920),  6  W.  C. 
L.  J.  485. 

24.  Steel  Sales  Corp.  v.  Indus.  Comm.,  —  111.  — ,  (1920),  127  N.  E.  698, 
6  W.  C.  L.  J.  303. 

25.  Ortner  v.  Zenith  Carburetor  Co.,   (Mich.),   (1919),  175  N.  W.  122, 
5  W.  C.  L.  J.  273. 

772 


ACCIDENT   ARISING  OUT  OF  COURSE  OF  EMPOYMENT.        §    311 

Claimant  fell  in  the  course  of  his  employment  and  broke  his 
thigh.  The  board  found  that  the  breaking  of  the  bone  and  the 
subsequent  fall  was  due  to  a  cancerous  infection  and  therefore  did 
not  arise  out  of  the  employment.  On  appeal  the  court  said :  "The 
evidence  is  wholly  undisputed  that  the  claimant  had  a  '  pathological 
lYai-ture.'  This  is  his  own  admission.  Upon  his  being  taken  to 
the  Roosevelt  Hospital  it  was  found  that  he  had  a  osteosarcoma, 
popularly  known  as  cancer  of  the  bone,  at  the  point  of  the  fracture, 
and  there  is  no  dispute  in  the  evidence  that  the  amputation  was 
made,  not  because  of  the  fracture,  but  because  of  the  diease.  Dr. 
Gillespie  testified,  and  there  was  no  condradiction,  that  there  was  no 
visible  injury  to  the  outside  of  the  leg  that  he  could  find,  and  that 
'the  leg  was  amputated  because  the  growth  was  malignant/  that  if 
the  accident  had  occurred,  as  described,  and  there  had  been  no  sar- 
coma at  that  point,  no  amputation  would  liave  been  necessary.  The 
diagnosis  was  made  immediately  after  the  accident,  and  the  oper- 
ration  took  place  within  the  eight  days  of  the  diagnosis,  and  the 
undisputed  evidence  is  to  the  effect  that  the  operation  was  for  the 
purpose  of  curing  the  diseased  condition  of  the  leg,  not  because  of 
the  fracture.  Indeed,  the  fair  inference  from  the  evidence  is  that  the 
fracture  was  the  result  of  the  disease  rather  than  of  the  accident, 
though  it  was  inferentially  admitted  that  the  false  step  hastened  the 
break.  But  the  lass  of  the  leg  was  clearly  due  to  the  diseased  condi- 
tion, that  disease  was  the  only  justification  for  the  amputation,  and 
the  disease  concedely  existed  before  the  accident  and  was,  doubt 
less,  the  underlying  cause  of  the  fracture,  for  it  is  hardly  conceiv- 
able that  such  a  fall  as  the  claimant  describes  could  have  result fl 
in  a  breaking  of  a  thigh  bone  at  its  lower  extremity.  It  is  not 
shown  that  the  claimant  was  bruised  in  any  way ;  he  apparently 
fell  forward  down  an  incline  of  about  30  degrees  and  rolled  to  the 
bottom,  with  no  other  injury  than  the  breaking  of  the  diseased 
bone,  and  to  charge  this  disease  to  the  industry,  simply  because 
it  became  manifest  by  reason  of  this  inconsequential  fall,  is  an 
abuse  of  the  purpose  of  the  Workmen's  Compensation  Law,  which 


77:1 


§  311  WORKMEN'S  COMPENSATION  LAW 

sought  to  insure  against  the  inherent  risks  of  certain  classes  of  in- 
dustry."26 

An  employee  sustained  a  fall  in  the  course  of  his  employment, 
and  a  sarcoma  or  cancer  appeared  on  his  left  clavicle  a  few  hours 
later.  The  medical  testimony  was  conflicting  as  to  the  possibility  of 
a  cancer  being  caused  by  the  injury  and  making  its  appearance 
the  same  day  of  the  injury.  The  board  found  that  the  cancer  was 
due  to  the  fall,  and  on  appeal  the  court  held  that,  in  view  of  the 
conflicting  testimony,  the  finding  would  not  be  distrubed.27 

Where  an  employee  suffered  a  blow  on  the  head,  which  drove 
a  tooth  through  his  tongue,  and  the  wound  later  developed  into 
a  cancer,  causing  his  death,  the  court  denied  compensation  because 
of  a  failure  to  give  notice  of  the  injury.28 

Where  a  driver  was  thrown  from  a  wagon,  and  accelerated  an 
unknown  cancer  of  the  stomach  causing  his  death,  it  was  held  that 
the  death  was  due  to  an  accident  arising  out  of  the  employment.29 

Where  an  employee  fell  astride  of  a  hot  pipe,  and  the  burns  he 
sustained  developed  into  a  cancer  necessitating  an  operation,  com- 
pensation was  awarded.30 

A  falling  chunk  of  coal  struck  a  fireman  on  the  leg  just  over 
a  sarcoma  of  the  bone,  and  made  an  amputation  of  the  leg  necessary. 
The  commission  allowed  compensation  on  the  ground  that  the  blow 
aggravated  a  cancerous  condition.  The  appellate  court  reversed 
the  award  on  the  ground  that  notice  of  the  accident  was  not 
given.31 

An  employee  worked  in  a  browning  room  where  fumes  of  obnox- 
ious, poisonous  gases  were  given  off.  He  developed  cancer  of  the 

26.  Brady  v.  Holbrook,  Cabot  &  Rollins  Corp.,  178  N.  Y.  S.  504,  (1919), 
5  W.  C.  L.  J.  91,  189  App.  Div.  405. 

27.  Santa   Ana    Sugar   Co.   of   Santa   Ana   v.    Indus.   Ace.   Comm.,   35 
Cal.  App.  652,  170  Pac.  630,  17  N.  C.  C.  A.  877,  1  W.  C.  L.  J.  745. 

28.  Potter  v.  John  Welsh  &  Sons,  Ltd.,  (1914),  3  K.  B.  1020,  W.  C.  & 
Ins.  Rep.  607,  7  B.  W.  C.  C.  738,  9  N.  C.  C.  A.  1033. 

29.  Blatt  v.  Schonberger  &  Noble,  176  N.  Y.  App.  Div.  924,  162  N.  Y. 
S.  1111. 

30.  Richardson  v.  Builders'  Exchange  Assn.,  179  N.  Y.  App.  Div.  949, 
165  N.  Y.  S.  1109. 

31.  Prokopiak  v.  Buffalo  Gas  Co.,  176  App.  Div.  128,  162  N.  Y.  S.  288. 

774 


ACCIDENT   ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §   311 

liver  and  died.  It  was  contended  that  the  cancerous  condition 
was  brought  about  by  the  poisonous  fumes.  The  medical  experts 
denied  that  this  was  the  cause  of  the  cancer,  and  that  the  conditions 
necessary  for  the  bringing  on  of  cancer  were  not  present.  It 
was  held  that  the  burden  of  showing  a  causal  connection  between 
the  conditions  of  employment  and  the  cancerous  condition  had  not 
been  discharged.32 

Deceased  was  engaged  in  furrowing  certain  posts,  pushing  them 
against  the  knives  by  pressing  his  abdomen  forcibly  against  them. 
After  working  in  this  manner  for  some  time  he  sat  down,  and  was 
evidently  in  great  pain.  He  died  three  days  later  from  hemor- 
rhages, which  defendant  claimed  were  produced  by  a  rupture  of  an 
internal  cancer.  The  court  held  that,  though  deceased  was  suffer- 
ing from  a  cancer,  still  the  cause  of  the  rupture  was  due  to  the 
unusual  pressure,  and  hence  the  death  was  due  to  an  accident  aris- 
ing out  of  the  employment.38 

A  dock  laborer  was  incapacitated  for  three  months  by  a  blow 
on  the  back.  He  underwent  two  operations  for  cancers  of  the 
kidney,  and  died  in  the  second  operation.  The  testimony  regarding 
the  origin  of  the  cancer  was  conflicting.  The  court  held  that  there 
was  sufficient  testimony  to  support  a  finding  that  the  cancer  was 
due  to  an  injury  arising  out  of  the  employment.84 

A  butcher's  canvasser  was  injured  when  the  bicycle  he  was  rid- 
ing skidded,  and  he  fell.  Two  months  later  he  was  found  to  be 
suffering  from  a  cancer,  and  the  medical  testimony  was  to  the 
effect  that  the  disease  was  brought  on  by  the  accident.  It  was 
held  that  the  cancer  arose  out  of  the  employment." 

An  employee  punctured  his  tongue  with  some  tacks  he  was  hold- 
ing in  his  mouth  while  putting  up  shade's.  A  cancer '  developed 
on  his  tongue,  necessitating  an  operation,  and  he  died  under  the 

32.  Alton  v.  Hopkins  &  Allen  Arms  Co.,  1  Conn.  C.  C.  D.  378;    Marcon- 
tonio  v.  The  Charles  Francis  Press,  N.  Y.  Bull.  Vol.  1,  No.  12,  pg.  16. 

33.  Voorh  ses  v.  Smith  Schoonmaker  Co.,  86   N.  J.  L.  600,  92  Atl.  280, 
Hose,  v.  City  of  Los  Angeles,  2  Cal.  I.  A.  C.  D.  551. 

34.  Lewis  v.  Port  of  London  Authority,  (1914),  7  B.  W.  C.  C.  577  C.  A. 

35.  Howard  v.  Rowsell  A  Mathews,  (1914),  7  B.  W.  C.  C.  552. 

775 


§    312  WORKMEN 'S    COMPENSATION    LAW 

anaesthetic.    It  Avas  held  that  his  death  was  due  to  an  injury  arising 
out  of  the  employment.36 

§  312.  Carbuncle. — Where  an  employee  who  was  suffering 
from  a  carbuncle,  received  an  injury  to  the  carbuncle  before  it  had 
ripened,  and  thereby  caused  septicaemia  and  disability,  it  was  held 
that  the  disability  was  due  to  an  accident  arising' out  of  the  em- 
ployment.37 

It  was  claimed  that  a  carbuncle  which  affected  the  spine  came 
from  a  blow  on  the  back.  Medical  testimony  was  to  the  effect 
that  carbuncles  are  not  associated  with  germs  introduced  from 
without,  but  generally,  if  not  always,  come  from  internal  poison- 
ing accompaning  a  run  down  condition,  as  was  the  case  of  this 
man.  It  was  held  that  the  claimant  had  not  discharged  the  onus 
of  proving  that  the  carbuncle  was  caused  by  an  accidental  injury 
arising  out  of  the  employment.38 

§  313.  Charity  Workers  and  Persons  Seeking  Relief  From 
Charity  Injured. — A  blind  pauper  suffered  a  crushed  hand,  neces- 
sitating amputation  of  the  three  middle  fingers,  while  working  in  the 
industrial  department  of  a  charitable  institution.  The  institution 
depended  upon  charitable  aid  for  its  upkeep.  The  workmen  were 
divided  into  three  classes  and  paid  for  their  labor.  The  arbitrator 
held  that  since  the  applicant  was  in  receipt  of  charitable  aid,  he 
could  not  be  said  to  be  a  workman.  Upon  appeal  the  court  of 
sessions  held  that  he  was  a  workman  within  the  meaning  of  the 
act,  and  suffered  an  injury  arising  out  of  his  employment.39 

36.  Cramer  v.  Littell,  38  N.  J.  L.  J.  82. 

37.  Caine  v.  Greenhut  &  Co.,  181  N.  Y.  App.  Div.   907,   167  N.  Y.   S. 
1091;    Cutter  v.  Snavalin,  S.  D.  R.  Vol.  14,  p.  547,  Bull.  Vol.  2,  pg.  152; 
Whalen  v.  N.  Y.  &  Cuban  Mail  S.  S.  Co.,  Bull,  of  Gen.  Contractors  Associa- 
tion, vol.  8,  pg.  64. 

38.  Redmond  v.  Winchester  Repeating  Arms  Co.,  2  Conn.  C.  D.,  Part  1, 
pg.  118;    Throm  v.  Estate  of  Mally,  2  Conn.  C.  D.,  Part  1,  pg.  121. 

39.  MacGillivray  v.  The  Northern   Counties    Institute   for    the  Blind, 
1911  Ct.  of  Sess.  Cas.  897,  4  B.  W.  C.  C.  429,  48  Sc.  L.  R.  811,   11  N.  C. 
C.  A.  77;  .  Porton  v.    Central   (unemployed)    Body  of    London,   (1909),  1 
K.  B.  173,  2   B.  W.    C.  C.  296,  11  N.  C.  C.  A.  78. 

776 


ACCIDENT   ARISING   OUT  OP  COURSE  OP   EMPLOYMENT.      §    313 

A  charitable  institution,  undertook  to  provide  unemployed  per- 
sons with  board  and  lodging,  and  occasionally  gave  small  sums  of 
money  to  persons  working  in  the  yard.  A  person  so  engaged  was 
injured  and  sought  compensation.  The  county  court  judge  fouml 
that  the  institution  was  not  carrying  on  a  "trade  or  business" 
within  tho  meaning  of  the  act,  and  second  that  there  was  no 
"contract  of  service"  between  the  parties  within  the  meaning 
of  the  act.  On  appeal,  the  court  without  deciding  the  question 
of  carrying  on  a  "trade  or  business,"  held  that  claimant  did  not 
succeed  in  establishing  a  contract  of  service.40 

A  person,  who  sought  board  and  lodging  from  the  salvation  army 
while  he  was  seeking  other  employment,  sustained  injuries  while 
pel-forming  work  which  such  persons  were  required  to  render  while 
ivmaining  at  the  institution.  The  court  holding  that  the  business 
respondent  was  engaged  in  did  not  come  within  the  Workmen's 
Comepnsation  Act,  said:  "The  stipulation  filed  on  June  14,  1915, 
lii-ing  the  one  concerning  the  facts  in  the  case,  does  not  allege  facts 
even  as  much  as  raising  a  presumption  that  the  business  in  which 
the  respondent  is  engaged  comes  within  any  of  the  provisions  of 
the  law  designating  hazardous  or  extrahazardous  employments. 
The  name  of  the  respondent,  as  given  in  the  title  of  the  case 
•Salvation  Army  Industrial  Home'  barely  suggests  that  it  possibly 
may  be  engaged  in  some  extrahazardous  business  that  would  bring 
it  under  the  terms  and  provisions  of  the  compensation  act  by 
operation  of  law;  and  inasmuch  as  there  is  no  showing  here  that 
the  business  in  which  the  respondent  is  engaged  is  extrahazardous, 
or  that  the  respondent  has  elected  to  operate  under  the  terms  of  the 
workmen's  compensation  act,  this  board  has  no  jurisdiction.  If 
there  is  any  liability  at  all,  it  is  in  some  other  forum  than  the 
Industrial  Board."41 

Where  an  employee  was  injured  by  a  fall  down  steps  in  a  chari- 
table hospital,  ami  lat«-r  died  from  the  effects  of  the  fall,  it  was 
held  that  under  the  statutes  of  the  state  and  ordinances  of  the  city 

40.  Burns  v.  Manchester  &  S.   Wesleyan  Mission,   1  B.   W.  C.  C.  S05, 
(1908),  11  N.  C.    C.  A     77. 

41.  Dery  v.   Salvation  Army  Industrial  Home.  111.   Ind.  Bd..    (1915)   11 
N.  C.  C.  A.  79. 

Y77 


§  314  WORKMEN'S  COMPENSATION  LAW 

the  operation  of  the  hospital  came  within  the  term  ' '  extrahazardous 
employments,"  and  therefore  the  dependants  of  deceased  were  en- 
titled to  compensation  for  the  death  resulting  from  an  accident 
arising  out  -of  the  employment.42 

Where  a  charity  worker  fell  and  sustained  injuries  when  leaving 
a  doctor's  office,  where  she  had  gone  for  information,  it  was  held 
that  the  accident  arose  out  of  the  employment.43 

§  314.  Chauffeur. — Where  a  chauffeur,  engaged  in  moving 
bricks,  quarreled  with  another  chauffeur  as  to  who  should  load 
first,  and  was  injured  in  a  fight  that  ensued,  which  he  himself 
provoked,  it  was  held  that  in  engaging  in  a  fight  the  employee 
placed  himself  within  the  exception  of  the  act  which  denies  com- 
pensation to  any  employee  when  by  wilful  intention  he  seeks  to 
bring  about  the  injury  or  death  of  himself  or  another.44 

Where  a  chauffeur,  who  was  employed  to  drive  a  passenger  to  a 
station,  arrived  before  train  time  and  proceeded  to  drive  about  the 
town  for  his  own  and  the  passenger's  personal  pleasure,  and  was 
killed  by  the  passenger  while  so  doing,  it  was  held  that  the  death 
did  not  arise  out  of  the  employment,  for  in  driving  about  town 
the  employee  had  ceased  to  be  acting  within  the  course  of  his 
employment.45 

An  employee  was  killed  in  a  collision  with  an  electric  car,  while 
driving  an  automobile  of  a  fellow  employee  with  which  he  was  not 
familiar.  There  were  no  instructions  from-  the  employer  as  to 
which  one  of  the  two  employees  should  drive.  The  court  held 
that,  while  the  employee  might  have  been  guilty  of  negligence,  still 
he  was  acting  within  the  course  of  his  employment  and  his  injury 
arose  out  of  the  employment.40 

42.  Hahnemann  Hospital  v.  Indus.  Bd.  of  111.,    282  111.  316,  118  N.  E. 
767,  1  W.  C.  L.  J.  754. 

43.  Gerard    v.   Associated   Charities   of   San   Francisco,    2     Cal.   Ind. 
Ace.  Comm.  705. 

44.  Stillwagon  v.    Gallon  Bros.,  183  App.  Div.  141,  170  N.  Y.  Supp.  677, 
2  W.  C.  L.  J.  379,  16  N.  C.    C.  A.   932 

45.  Central   Garage  of  LaSalle   v.  Indus.  Comm.,  286  111.  291,    (1919), 
121  N.  E.  587,  3  W.  C.  L.  J.  428,  18  N.  C.  C.  A.  1052;    Hatter  v.  Payne,  1 
Cal.  I.  A.  C.   647,  12  N.  C.  C.  A.   179. 

46.  Maryland  Casualty  Co.  v.  Indus.  Aoc.  Comm.,  3  9Cal.  App.  229,  178 
Pac.  542,  3  W.  C.  L.  J.  577. 

778 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPOTMENT.        §   314 

Two  chauffeurs  were  cleaning  a  garage  and  cars  according  to 
directions  of  their  employer.  One  found  a  dynamite  cap,  and  in 
attempting  to  remove  a  wire  from  it,  it  exploded  and  injured  the 
other  employee.  In  holding  that  the  injury  arose  out  of  the  em- 
ployment the  court  said:  "It  was  the  duty  of  the  employee  to 
acquaint  his  employer  of  the  finding  of  the  cap.  The  attempt  to 
remove  the  wire  might  have  been  careless  but  it  was  not  either  a 
sportive  or  a  wilful  act.  The  claimant  suffered  injury  from  a 
fellow  employee's  act  while  claimant  was  performing  his  duties, 
lie  was  injured  through  the  carelessness  and  neglect  of  a  fellow 
workman,  which  was  an  accidental  risk  of  his  employment."47 

Where  a  chauffeur  got  some  foreign  substance  into  his  eye  while 
driving,  which  destroyed  the  sight  of  his  eye,  the  board  found  that 
the  loss  of  the  eye  was  due  to  an  accident  arising  out  of  the  em- 
ployment.48 

Where  a  demonstrating  chauffeur  was  injured  while  driving  one 
of  the  demonstrating  machines  of  his  employer,  it  was  held  that 
the  injury  arose  out  of  the  employment.49 

Where  claimant  lent  his  machine  to  an  automobile  club  for  use 
in  an  outing  for  orphan  children,  and  was  injured  while  driving 
his  own  car  to  the  orphanage,  it  was  held  that  he  was  not  injured  in 
the  course  of  his  employment."0 

A  chauffeur,  employed  to  drive  two  passengers,  was  seen  to  de- 
part and  a  couple  of  days  later  his  dead  body  was  found  by  the 
roadside,  the  circumstances  tending  to  show  that  he  had  for  some 
unknown  reason,  not  that  of  robbery,  been  murdered  by  the  pas- 
sengers. It  was  held  -that  such  evidence  was  insufficient  to  establish 
that  his  murder  was  due  to  any  risk  arising  out  of  the  employment. 
It  was  also  held  that  there  is  no  presumption  in  law  to  the  effect 

47.  Laurino  v.  Donovan,  186  App.  Div.  387,  173  N.  Y.  S.  619,  1919,  17 
N.  C.  C.  A.  944;    Rogers  v.  Rogers  (Ind.  App.),  122  N.  E.  778,  (1919),  18 
N.  C.  C.    A.  1039. 

48.  Grant  v.  Narlian.l  Cal.  I  A.  C.  482,  (1914),  12  N.  C.  C.  A.  179. 

49.  Todd  v.  Drouet  ft   Page  Co.,  3  N.  Y.   St.  Dep.   Rep.  351,  12  N.  C. 
C.  A.  178. 

50.  In  re  Derby,  Ohio  Ind.  Com.,  (1915),  12  N.   C.  C.   A.   178. 


779 


§  315  WORKMEN'S  COMPENSATION  LAW 

that  a  chauffeur  is,  by  reason  of  his  employment,  subject  to  any 
special  risk  of  being  murdered.51 

Where  a  chauffeur  was  killed  while  driving  at  the  rate  of  seventy 
miles  an  hour,  it  was  held  that  his  act  in  so  doing  amounted  to 
foolhardiness  and  would  be  classed  as  wilful  misconduct.52 

Where  a  chauffeur  fractured  his  arm  while  cranking  an  automo- 
bile, and  later  abscesses  developed,  it  was  held  that  the  extended 
disability  was  due  to  the  accidental  injury  arising  out  of  the  em- 
ployment.53 

Where  a  chauffeur  was  waiting  for  his  employer's  automobile 
to  be  repaired  in  a  garage  and  volunteered  to  crank  the  machine 
and  sustained  a  broken  arm  in  so  doing,  it  was  held  that  he  was 
serving  no  interest  of  his  employer,  and  therefore  his  injury  did 
not  arise  out  of  the  employment.54  ;  »:; 

Where  a  truck  driver,  whose  duties  required  that  he  take  a 
truck  back  to  the  garage  after  work,  allowed  another  to  drive  the 
truck  on  the  way  home  and,  while  that  other  was  driving,  fell 
from  the  truck  and  was  killed,  the  court  held  that  the  employee 
was  not  at  the  time  of  the  injury  engaged  in  the  performance  of 
the  duties  of  his  employment,  and  therefore  it  could  not  be  said 
that  the  accident  arose  out  of  the  employment.55 

§  315.  Concussion  of  Brain. — An  employee  fell  while  at  work, 
and  the  evidence  tended  to  show  that  there  were  no  obstacles 
about  over  which  the  employee  might  have  tripped.  He  was  first 
seen  lying  on  the  ground  frothing  from  the  mouth.  A  post  mortem 
examination  revealed  a  hemorrhage  of  the  brain  of  long  standing. 
The  medical  testimony  was  to  the  effect  that  decedent  came  to  his 
death  as  the  result  of  a  blood  clot  on  the  brain.  The  board  awarded 
compensation,  holding  that  death  was  due  to  the  fall.  On  appeal 

51.  Gibson  v.  Aves,  2  Cal.  I.  A.  C.  D.,  (1915),  185,  10  N.  C.  C.  A.  645. 

52.  Head  v.  Fidelity  &  Deposit  Co.,   1  Cal.  I.  A.  C.  D.   (1914),  32,  8  N. 
C.  C.  A.  904. 

53.  Newcomb  v.  Albertson,  85  N.  J.  L.  435,  89  Atl.  928,  4  N.  C.  C.  A.  783. 

54.  Belong  v.  Krebs,  1  Cal.  I.  A.  C.   D.   592. 

55.  Morris  v.  Indus.    Comm.,  —  111.  — ,   (1920),  128    N.  E.    727,  7    W. 
C.  L.  J.  41. 

780 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    316 

the  decision  of  the  board  was  reversed,  the  court  holding  that  such 
finding  could  only  be  based  on  mere  conjecture  or  guess.50 

A  workman  was  found  unconscious  at  the  foot  of  a  ladder  over 
which  he  had  to  climb  every  few  minutes.  He  was  suffering  from 
concussion  of  the  brain.  The  court  held  that  the  evidence  NVM-. 
sufficient  to  justify  the  conclusion  that  the  concussion  of  the  brain 
was  brought  about  by  an  accidental  fall  from  the  ladder  while  the 
employee  was  performing  his  duties." 

An  employee  suffered  a  concussion  of  the  brain  from  an  acci- 
dental injury.  He  recovered  sufficiently  to  return  to  work,  and 
later  was  seen  to  fall,  and  he  died  almost  immediately.  The 
mrdical  testimony  was  to  the  effect  that  the  first  injury  was  the 
cause  of  the  death.  It  was  held  that  the  death  was  due  to  an 
injury  arising  out  of  the  employment. r>s 

A  traveling  salesman,  crossing  on  a  ferry  from  San  Francisco 
to  Oakland  on  business,  became  diz/.y,  and  after  landing  fell  be- 
cause of  the  dizziness,  causing  concussion  of  the  brain.  There  was 
no  evidence  that  the  bay  was  rough  or  the  weather  bad  at  the 
time  of  'crossing.  It  was  held  that  there  was  no  evidence  to  show 
a  causal  connection  between  the  cause  of  the  fall  and  any  risk 
incidental  to  or  arising  out  of  the  work  to  be  performed.  Th«- 
claimant  did  not  discharge  the  burden  of  proving  that  the  fall 
was  due  to  an  accident  arising  out  of  the  employment.59 

§  316.  Contagious  Skin  Disease. — Applicant,  a  porter  in  an 
infectious  dist-asc  hospital,  was  employed  in  tin-  wards  and  also  to 
clean  out  the  mortuary.  He  contracted  scarlet  fever  and  Claimed 
compensation  under  the  workmen's  compensation  act.  It  was  held 
that  it  was  very  likely  that  he  contracted  the  disease  in  or  about 
the  hospital,  and  the  contracting  of  a  disease  could  not,  under  th<> 

56.  Hansen  v.  Turners  Const.  Co.,  224  N.  Y.  331.  120  N.  E.  693.  3  W.  C. 
L.  J.  168,  17  N.  C.  C.  A.  786. 

57.  Fagan  v.  Jack  Bros.,  31  Sheriff  Ct.  R.   (Sc.),  332,  (1915),  10  N.  C. 
C.  A.  620;     Meyers  v.  Michigan  Cent.  R.  Co.,   199  Mich.   134,  165  N.  W. 
703,  15  N.  C     C.  A.  277. 

54.     Deem  v.  Kalamazoo  Paper  Co.,  189  Mich.  655,  155  N.  W.  684. 
59.     Van  Winkle  v.  Johnson  Co..  2  Cal.  I    A .  •  .   I»ec.   212;     Horn 
Engwick.  2  Cal.   I.  A.  C.  D.  875. 

781 


§  317  WORKMEN'S  COMPENSATION  LAW 

circumstances,  be  called  an  accident  within  the  meaning  of  the 
act.60 

Where  an  employee  contracted  eczema  as  a  result  of  being  ex- 
posed to  fumes  and  splashes  of  carbon  bisulphide,  it  was  held  to 
be  an  injury  by  accident  arising  out  of  the  employment61 

A  bookkeeper  in  an  ice  and  storage  plant  contracted  impetigo 
contagiosa,  which  might  have  been  contracted  outside  of  his  em- 
ployment. He  was  very  susceptible  to  this  disease.  There  was 
nothing  in  or  about  the  employment  that  would  be  likely  to  cause 
the  disease.  The  employees  all  used  a  roller  towel  and  the  disease 
might  have  been  communicated  in  this  manner  from  a  fellow  em- 
ployee who  had  been  affected  by  the  disease.  It  was  held  that  the 
evidence  was  insufficient  to  show  that  the  disease  was  due  to  an 
injury  arising  out  of  the  employment.62 

§  317.  Delirium  Tremens. — An  employee  was  injured  by  a  keg 
rolling  off  a  brewery  wagon  and  striking  him  on  the  leg.  He  was 
taken  to  a  hospital  where  he  died  nine  days  later  from  delirium 
tremens  and  alcholic  meningitis.  It  was  found  that  the  condition 
of  alcoholism  was  aggravated  by  the  accidental  injury  arising  out 
the  employment.63 

"Where  an  ice  wagon  driver  claimed  to  have  sustained  injuries 
when  ice  tongs  slipped,  causing  a  cake  of  ice  to  strike  him  in  the 
abdomen,  and  died  later  from  delirium  tremens,  the  commission 
found  that  the  predominating  cause  of  the  death  was  the  accidental 
injury  during  the  course  of  the  employment,  and  that  the  delerium 
tremens  was  only  a  contributory  cause.64 

Where  a  printer  slipped  and  fell  upon  a  floor,  striking  his  head, 
and  later  developed  delirium  tremens  and  died,  the  board  found 

60.  Martin  v.  Manchester  Corp.,   (1912),  W.  C.  &  Ins.  Rep.  289,  5  B. 
W.  C.  C.  259,  106  Law  T.  R.  741,  28  Times  Law  Rep.,  344,  3  N.  C.  C.  A.  238, 

61.  Evans  v/Dodd,  5  B.  W.  C.  C.  305. 

62.  Allen  v.  Los  Angeles  &  Storage  Co.,  3  Cal.  I.  A.  C   104. 

63.  Dunn  v.  West  End.  Brg.  Co.,  N.  Y.  S.  D.  R.  Vol.  5,  pg.  380;    Affirmed 
by  the   Appellate  Div.,   (1916) ;    Sullivan  v.  Industrial    Engineering  Co., 
173   App.  Div  65,    158  N.  Y.  S.    970. 

64.  Carroll  v.  Knickerbocker  Ice  Co.,    169  N.    Y.  App.    Div.  450,  155 
N.   Y.  S.   1;    McCahill  v.  N.    Y.  Transportation  Co.,    201  N.  Y.    221,  94 
N.  EL  616.  48  L.  R.  A.  N.  S.  131,  Ann.  Gas.   1912A  961. 

782 


ACCIDENT  ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    317 

that  the  death  was  due  to  the  injury  arising  out  of  the  employment, 
and  the  appellate  division  unanimously  and  without  opinion  af- 
firmed the  finding.65 

Where  an  employee  was  struck  by  a  falling  timber  and  later 
developed  lobar  pneumonia  and  delirium  tremens,  the  court  held 
that  there  was  a  sufficient  showing  of  connection  between  the  acci- 
dental injury  during  the  course  of  employment  and  the  cause  of 
the  death  to  justify  an  award  for,  "As  a  matter  of  fact  delirium 
frequently  follows  an  injury.  A  man  need  not  be  a  hard  drinker 
to  become  delirious  after  an  injury.  Men  who  are  very  moderate 
drinkers  become  delirious  shortly  following  an  injury.  We  have 
cases  like  this  day  after  day.  We  have  had  doctors  here  and  they 
agree  that  a  man  who  is  a  moderate  drinker  may  become  delirious 
following  not  a  very  severe  injury,  and  where  the  man  dies  in  de- 
lirium and  the  immediate  cause  of  his  death  was  delirium  tremens, 
and  yet  the  cause  of  his  delirium  was  the  accident,  the  cause  of  his 
death  was  the  accident."66 

An  employee  complained  of  hernia,  and  the  claim  agent  advised 
an  operation.  The  operation  was  performed,  but  prior  to  the 
operation  delirium  tremens  and  lobar  pneumonia  resulted,  causing 
the  death  of  the  employee.  A  claim  for  compensation  was  dismiss- 
ed, because  of  a  failure  on  the  part  of  the  employee  to  give  notice 
of  the  strain  which  he  claimed  caused  the  hernia.67 

Where  it  appeared  that  delirium  tremens  would  not  have  devel- 
oped had  it  not  been  for  the  injury  and  shock  resulting  from  an 
accident  arising  out  of  the  employment,  the  court,  holding  that 
the  death  was  due  to  the  injury,  said:  "The  fact  that  his  system 
had  been  so  weakened  by  his  intemperate  habit  that  it  was  unable 
to  withstand  the  effects  of  the  injury  does  not  thereby  shift  the 

65.  Winters  v.  N.  Y.   Herald  Co.,    171    N.  Y.  App.    Div.  960,  155    N. 
Y.  S.  1149, 

66.  Sullivan  v.   Indus.  Engineering   Co.,  173  N.  Y.  App.  Div.   65.  158 
N.  Y.  S.  970;    Rzepeznskl  v.  Manhattan  Brass  Co.,  181  N.  Y   App.  Div. 
952;    Beckwith  v.  Bastian  Bros.  Co.,  181   N.  Y.  App.  Div.  909,  1C7  N.  Y. 
S.  1087. 

67.  Herbert  v.  Lake  Shore  &  M.  S.  R.  Co.,  200  Mich   566,  166  N.  W. 
923,  1    W.    C.  L.    J.  1069. 

783 


§  318  WORKMEN'S  COMPENSATION  LAW 

proximate   cause   of   death    from   his   injury   to   his   intemperate 
habit"68 

§  318.  Dislocation. — An  employee  of  a  corporation  was  injured 
while  delivering  books  to  one  of  the  stockholders,  when  he  slipped 
and  fell  down  stairs,  causing  the  box  to  tip  and  fall,  dislocating 
two  joints  of  his  spine.  Reversing  an  award  of  compensation  in 
favor  of  claimant,  the  court  said:  "It  appears  conclusively  that 
such  temporary  service  was  of  a  casual  nature,  a  mere  accommo- 
dation undertaken  by  the  corporation  for  one  of  its  stockholders 
without  charge,  and  in  no  sense  a  part  of  its  special  machine 
shop  business  in  which  both  Shelby  (the  corporation's  general 
manager  from  whom  the  order  to  deliver  the  books  emanated)  and 
plaintiff  was  employed.  'Uncompensated  favors  extended  occasion- 
ally to  its  stockholders  surely  do  not  constitute  "business"  of  a 
corporation,  "usual"  or  otherwise.'  The  court  held  farther  that 
the  accident  did  not  arise  out  of  and  in  the  course  of  applicant's 
employment.69 

An  employee  in  a  laundry  suffered  a  dislocation  of  the  womb,  as 
the  result  of  a  strain  caused  by  carrying  a  bucket  of  starch.  The 
medical  evidence  showed  that  the  straining  and  heavy  lifting  was 
the  direct  cause  of  the  injury,  but  that  the  injury  was  made 
possible  by  a  laceration  of  the  womb  at  the  time  of  child  birth 
thirty  years  before.  Compensation  was  awarded.70 

A  dislocation  of  the  semilunar  cartilege  of  the  knee,  caused  by 
quickly  arising  from  a  stooping  position,  is  an  injury  arising  out 
of  the  employment,  when  the  very  nature  of  the  employment  re- 
quires such  exertions.71 

Where  an  employee  slipped  and  fell,  dislocating  his  clavicle,  and 
was  operated  upon  three  days  later  and  died  from  hypostatie 

68.  Ramlow  v.  Moon  Lake  Ice  Co.,   192  Mich.  505,  158  N.   W.  1027,  L. 
R.  A.  1916F,  955;    14  N.  C.  C.  A.  295;    In  re  Cross,  (Mass.),  1  Nat.  Comp. 
Jour.,  (1914),  21,  9  N.  C.  C.  A.  261;    Minnis  v.  Young,  9  N.  Y.  St.  Dep.  31*. 

69.  Carnahan  v.  Mailometer  Co.,  201  Mich.  173,  167  N.  W.  9,  1  W.  C. 
L.  J.  1045. 

70.  Loustalet  v.  Metropolitan  Laundry   Co.,  1  Cal.  I.  Ace.   Comm.  D., 
(1914),  318,  10  N.  C.  C.  A.  771, 

71.  Giampolini-Lombardi  Co.  v,    Raggio,    2  Cal.  Ind.  A.  C.    936. 
784 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.          §    319 

pneumonia,  caused  by  the  weakening  »>t'  liis  system  by  the  operation, 
it  was  held  that  the  death  was  due  to  an  injury  arising  out  of  the 
employment.72 

Where  an  employee,  through  accidental  injury,  suffered  a  dis 
location  of  the  coecum,  general  adhesions  in  the  abdomen,  and 
constipation,  resulting  in  traumatic  peritonitis,  which  condition 
necessitated  the  removal  of  the  appendix,  all  this  was  held  to  be 
caused  by  the  accident  arising  out  of  the  employment71 

Where  an  elevator  operator,  in  raising  heavy  gates  above  his 
head,  sustained  a  dislocation  of  the  collar  bone,  it  was  held  that  the 
injury  arose  out  of  the  employment.74 

§  319.  Drivers  Injured. — Where  a  teamster  was  kicked  by  a 
horse,  and  applied  salve  and  continued  to  work  without  consulting 
a  doctor,  though  advised  to  do  so,  it  could  not  be  said  that  he  was 
guilty  of  such  unreasonable  conduct  as  would  preclude  a  recovery, 
whore  the  employer  merely  suggested  that  he  see  a  named  doctor 
and  the  employee  was  not  informed  that  the  employer  was  furnish- 
ing the  doctor.78 

"The  relator's  husband,  Charles  Jacobson,  was  employed  by  the 
City  of  Minneapolis.  He  was  driving  a  sprinkling  wagon.  He 
furnished  his  team  and  the  running  gears  of  the  wagon.  The 
city  furnished  the  tank.  He  kept  the  sprinkler  in  the  rear  of  his 
house  and  stabled  his  horses  in  his  barn  on  his  premises,  and  fed 
and  cared  for  them  at  his  own  expense.  He  worked  eight  hours 
a  day,  commencing  at  8  and  quitting  at  5,  with  an  hour  off  at  noon, 
and  received  for  his  services  and  the  use  of  his  team  and  wagon  $6 
per  day.  On  the  day  of  his  injury  he  had  finished  his  day's  work, 
had  gone  home  and  stabled  and  fed  his  horses,  and  had  eaten  lii> 
supper.  After  supper  he  went  to  the  stable  to  doctor  one  of  his 
horses  which  had  a  sore  neck.  While  he  was  so  engaged  the  horse 
killed  him.  The  facts  stated  give  no  right  to  compensation.  The 

72.  Cantwell  v.  Travelers  Ins.  Co.,  2  Mass.  W.  C.  C.  246. 

73.  Gregg  v.  Frankfort  Gen.  Ins.  Co.,  2   Mass.  Wk.  Comp.  Cases  581. 

74.  Bonin  v.  California  Hawaiian  Sugar  Refinery,  3  Cal.  I.  A.  C.  334. 

75.  Banner  Coffee  Co.   v.    Billig.    170   Wis.   157,    (1919),   174     \.     W. 
544,  6   W.   C.  L.  J.  118. 

785 

W.  C.-—50 


§  319  WOEKMEN'S  COMPENSATION  LAW 

plaintiff's  work  for  the  day  was  done.  He  was  not  to  do  service  for 
the  city  until  the  next  morning.  The  horses  were  his  and  he  fed 
and  cared  for  them,  and  furnished  them  and  his  wagon  ready  for 
work  at  a  definite  time.  The  accident  did  not  arise  out  of  his 
employment  any  more  than  would  an  accident  which  came  while 
he  was  repairing  his  wagon  or  while  doing  other  work  in  preparation 
for  his  next  day's  work  for  the  city.  The  relator  cites  cases  where 
a  teamster,  injured  while  caring  for  his  horses  after  their  work  for 
the  day  was  done,  was  allowed  compensation.  Smith  v.  Price,  168 
App.  Div.  421, 153  N.  Y.  Supp.  221 ;  Costello  v.  Taylor,  217  111.  179. 
111.  N.  E.  755;  Duburban  Ice  Co.  v.  Industrial  Board,  274  111.  630, 
113  N.  E.  979.  They  involve  situations  where  a  teamster  was  doing 
work  for  his  employer  in  the  care  of  his  employer's  team  and  as 
a  part  of  the  work  for  his  employer."76 

Claimant,  a  garbage  collector,  was  injured  as  a  result  of  his 
horses  becoming  frightened  while  he  was  taking  his  horses  and 
equipment  back  to  the  barn  of  his  immediate  employer.  Claimant 's 
immediate  employer  Boadi  was  not  subject  to  the  provisions  of  the 
compensation  act.  In  holding  that  he  was  entitled  to  compensation 
for  an  injury  arising  out  of  and  in  the  course  of  the  employment, 
the  court  said:  "Boadi  was  not  subject  to  the  provisions  of  the 
Compensation  Act,  and  that  act  provides  (Stats,  sec.  2394 — 3)  that 
an  employer  subject  to  the  provisions  of  the  act  shall  be  liable  for 
compensation  to  an  employee  of  a  contractor  or  subcontractor  under 
him  who  is  not  subject  to  the  act  in  any  case  where  such  employer 
would  have  been  liable  for  compensation  if  such  employee  had  been 
working  directly  for  such  employer.  The  city  of  Milwaukee  is  sub- 
ject to  the  provisions  of  the  act,  and  this  provision  plainly  made  the 
claimant  here  the  employee  of  the  city  while  carrying  out  Boadi 's 
contract  with  the  city  to  the  same  extent  that  he  was  an  employee 
of  Boadi  so  far  as  the  purposes  of  the  Compensation  Act  are  con- 
cerned. So  there  can  be  no  doubt  of  the  existence  of  the  relation 
of  employer  and  employee  within  the  meaning  of  the  Compen- 
sation Act  at  the  time  of  the  accident.  That  the  claimant  was 
then  performing  services  growing  out  of  and  incidental  to  his  em- 

76.    State  ex  rel.  Jacobson  v.  District  Court  of  Hennepin  County,   144 
Minn.  259,  175  N.  W.  110,  5  W.  C.  L.  J.  288. 
786 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPOYMENT.        §   319 

ployraent  seems  equally  beyond  doubt.  He  was  taking  the  garbage 
collection  equipment,  part  of  which  belonged  to  the  city,  to  its 
usual  place  of  storage  and  care  so  that  it  should  be  ready  for  the 
work  of  the  following  day.  We  can  hardly  conceive  of  a  service 
which  grows  out  of  and  is  incidental  to  his  employment  as  a  garbage 
collection  if  this  is  not  such  a  service."77 

A  teamster's  duties  required  him  to  go  among  customers  to 
pick  up  business.  He  slipped  and  fell  on  a  runway  at  the  door  of 
a  customer,  sustaining  injuries  causing  his  death.  It  was  con- 
tended that  the  injury  did  not  arise  out  of  and  in  the  course  of 
the  employment.  The  court  said:  "This  contention  is  without 
merit.  It  clearly  appears  that  a  part  of  the  business  of  deceased 
was  to  go  to  customers  of  his  employers  and  pick  up  business; 
that  Randall  &  Co.,  were  such  customers  and  that  he  was  com- 
pelled to  go  through  Randall  &  Co.'s,  building  to  reach  Spahus, 
another  of  his  customers.  The  wagon  and  team  that  he  had  been 
using  had  been  left  in  the  alley,  and  the  reasonable  inference  to 
be  drawn  from  the  facts  proven  is  in  complete  accord  with  the 
testimony  of  a  witness  who  testified,  'I  suppose  he  went  back 
there  to  see  if  he  could  get  a  load.'  The  rule  has  been  announced 
and  frequently  applied  that  if  the  employee  is  injured  while  in 
the  performance  of  any  of  his  duties  such  injury  arises  out  of  the 
employment.  The  evidence  in  this  case  fairly  tends  to  show  that 
the  injury  arose  out  of  the  employment."78 

Where  a  teamster  indulged  in  horseplay  with  a  fellow  em- 
ployee, who  threw  a  stick  at  him,  striking  him  in  the  eye,  it  was 
held  that  as  the  injury  resulted  from  horseplay  or  fooling,  plain- 
tiff was  not  entitled  to  compensation.78 

77.  City  of  Milwaukee  v.  Fera,  170  Wis.  348.  174  N.  W.  926,  5   W.  C. 
L.  J.  336. 

78.  Helnze  v.  Indus.  Comm.,  (1919),  288  111.  342.  123  N.  E.  598,   4  W. 
C.  L.  J.  361,  18  N.  C.  C.  A.  1020;    E.  E.  Walsh  Teaming  Co.  v.  Indus. 
Comm.,  (Dec.,  1919),  290  111.  536,  125  N.  E.  331,  5  W.  C.  L.  J.  377. 

79.  Pierce  v.  Boyer-Van  Kuran  L/br.  &  Coal  Co.,  99  Neb.  321  156  N.  W. 
609,  16  N.  C.  C.  A.  287. 

787 


§  319  WORKMEN'S  COMPENSATION  LAW 

Where  a  teamster  was  bitten  by  a  cat,  which  was  usually  kept 
about  the  stable,  it  was  held  that  the  accident  arose  out  of  the 
employment.80 

Four  years  before  his  death,  decedent,  a  teamster,  received  a 
fall  in  the  course  of  his  employment,  which  resulted  in  impair- 
ment of  his  memory.  One  afternoon  he  was  ordered  to  return  to 
the  stable  with  his  horse  and  was  found  in  a  swamp.  He  died 
later  from  pneumonia.  It  was  contended  that  the  death  was  due 
to  the  previous  fall  and  therefore  was  due  to  an  accident  arising 
out  of  the  employment.  In  reversing  an  award,  the  court  said: 
"If  the  horse  driven  by  Milliken  had  run  away  and  Milliken  had 
been  thereby  thrown  out  and  killed  the  personal  injury  in  fact 
suffered  in  that  case  would  have  been  one  which  from  the  nature 
of  his  employment  would  be  likely  to  arise  and  so  would  be  one 
'arising  out  of  his  employment.'  But  as  we  have  said,  there  is 
nothing  in  the  employment  of  driving  a  wagon  which  makes  it 
likely  that  the  employee  will  alight  from  his  wagon,  wander  to 
and  fall  into  a  swamp,  and  lie  there  all  night.  It  seems  plain  that 
if  Milliken 's  death  was  caused  by  a  personal  injury,  it  was  the 
one  which  happened  some  four  or  five  years  before  the  occur- 
rence here  complained  of  and  before  the  Workmen's  Compensa- 
tion Act  \vas  passed.  At  that  time  he  fell  from  his  wagon  and 
striking  on  his  head  suffered  as  a  result  an  impairment  of  his 
memory."81 

Where  a  driver  was  kicked,  when  he  was  leading  his  employ- 
er's horse  past  other  horses  in  a  blacksmith  shop,  for  the  purpose 
of  having  shoes  put  on  the  horse,  it  was  held  that  the  accident 
arose  out  of  the  employment.82 

Where  a  teamster  was  killed  while  watering  extra  teams  be- 
longing to  his  employer,  it  was  held  that  the  accident  arose  out 
of  the  employment83 

80.  Rowland  v.  Wright,  77  L.  J.  K.  B.  1071,  99  L.  T.  R.  758,  24  T.  L.  R. 
852,  3  N.  C.  C.  A.  278,  1  B.  W.  a  C.  192  (1908). 

81.  Milliken   v.  A.  Towle    &  Co.,  216  Mass.  293,  103    N.  E.    898,  4  N. 
C.  C.  A.  512. 

82.  Kenefick  v.  Laurer  Brewing  Co.,  4  N.  Y.  St.  Dep.  Rep.  350. 

83.  Suburban  Ice  Co.  v.  Indus.  Bd.,  274  111.  630,  113  N.   E.  979;   Gylfe 
v.    Suburban  Ice    Co.,   1  Bull.   111.    Ind.  Bd.   167,  11    N.    C.   C.  A.    325; 
In  re  Puterbaugh,  1  Bull.  Ohio.  Ind.  Com.  143. 

788 


ACCIDENT   ARISING  OUT  OP  COURSE  OP  EMPOYMENT.        §    319 

Where  a  teamster  lost  his  eyesight  as  the  result  of  infection 
from  disinfecting  a  stable,  it  was  held  that  he  had  suffered  an 
injury  that  arose  out  of  the  employment.84 

A  teamster  left  his  team,  while  waiting  for  his  wagon  to  be 
loaded,  and  crawled  on  top  of  a  car.  The  team  became  frighten- 
ed and  ran  away.  In  an  attempt  to  stop  them  the  driver  was  in- 
jured so  that  he  died.  It  was  held  that  the  accident  did  not  arise 
out  of  the  employment.85 

It  has  been  held  that  an  injury  sustained  by  a  driver  in  at- 
tempting to  stop  a  runaway  horse,  when  such  runaway  is  not 
due  to  the  negligence  of  the  driver,  is  an  accidental  injury  aris- 
ing out  of  the  employment.88 

Where  a  driver  was  injured  while  driving  his  wagon  back  to 
the  place  of  his  employment,  after  making  a  delivery  for  his  em- 
ployer, it  was  held  that  he  was  injured  by  an  accident  arising 
out  of  and  in  the  course  of  his  employment.87 

Where  a  teamster  for  a  brewery  was  overcome  by  heat  while 
returning  to  the  brewery  after  making  a  delivery,  it  was  held 
that  the  employment  of  deceased  exposed  him  to  no  extra  hazard 
from  the  danger  of  becoming  overheated,  and  that  while  the 
accident  arose  in  the  course  of  the  employment,  it  did  not  arise 
out  of  it.88 

Whore  a  teamster  was  injured  when  a  shot  gun,  which  was 
taken  along  by  a  fellow  employee  for  his  own  pleasure,  was  acci- 
dentally discharged,  the  court,  in  holding  that  the  accident  did 
not  arise  out  of  the  employment,  said:  "The  case  is  clearly  one 
where  an  employee  in  the  performance  of  his  duty  meets  with  an 
accident  bearing  no  relation  whatsoever  to  the  nature  of  the  em- 
ployment. The  only  argument  in  support  of  the  award  would  be, 
it  seems  to  us,  that  the  employer  in  permitting  the  fellow  em- 

84.  Walker  v.  M.  .Mosson  Co.,  3  N.  Y.  S.  Dep.  362. 

85.  Oliver  v.  Smith.  38  N.  J.  L.  J.  148. 

86.  Kossoff  v.  R.  H.  Macy  &  Co.,  (1916),  7  N.  Y.  St.  Dep.  430;    Dale 
v.  Hual  Const.  Co.,  (1916),  9  N.  Y.  St.  Dep.  282, 

87.  White  v.  East  St.  Louis  Ry.  Co.,  211   111.  App.  14.   17   N.  C.  C.  A. 
938;    Smith  v.  Price,  153  N.  Y.S.  221,  9  N.  C.  C.  A.  712.  168  App.  Dlv.  421 

88.  Campbell  v.  Clausen-Flanagan  Brewery,  183  N.  Y.  App.  Div.  490. 
171  N.  Y.  S.  522,  2  W.  C.   L.  J.  676,  17   N.  C.  C.  A.  1002. 

789 


§  319  WORKMEN'S  COMPENSATION  LAW 

ployee  to  take  with  him  the  shotgun  subjected  the  injured  man 
to  an  extra  hazard.  But  as  against  this  it  is  clear  that  the  em- 
ployer, though  he  knew  that  the  shotgun  was  to  be  taken  along, 
neither  ordered  it  nor  in  any  other  way  than  by  his  silence  as- 
sented to  it.  It  is  not  even  contended  that  the  employer  knew 
that  the  gun  was  loaded,  and  unloaded  it  was  as  harmless  as  any 
of  the  tools  which  they  were  carrying.  It  was  quite  open  to  the 
injured  man  to  object  to  the  presence  of  the  gun,  if  in  fact  he  did 
object  to  it,  and  it  was  but  a  part  of  common  prudence  for  him  to 
have  seen  that  the  gun  was  unloaded  when  he  assented  to  his 
nephew  placing  it  in  this  obviously  dangerous  position.  *  *  * 
This  accident  was  no  more  reasonably  incident  to  the  employ- 
ment than  it  would  have  been  had  a  pistol  been  carried  in  the 
nephew's  pocket  and  by  the  same  jolt  of  the  wagon  had  been  ac- 
cidentally discharged  to  the  injury  of  the  uncle."89 

A  driver  was  crushed  under  a  load  of  lumber  and  suffered 
several  broken  ribs.  He  died  later,  and  it  was  contended  that  the 
death  was  due  to  disease,  and  not  to  the  accident  arising  out  of 
the  employment.  In  holding  that  the  death  was  due  to  an  acci- 
dent arising  out  of  the  employment,  the  court  said :  ' '  An  autopsy 
disclosed  that  he  (deceased)  had  pulmonary  tuberculosis  in  such 
an  advanced  stage  that  one  lung  had  been  entirely  destroyed  and 
the  other  to  a  considerable  extent;  also  that  he  was  suffering 
from  other  diseases.  The  relators  called  three  physicians  who  tes- 
tified that,  in  their  opinion,  his  death  was  caused  by  pulmonary 
tuberculosis,  and  that  the  injuries  which  he  had  sustained  were 
not  sufficient  either  to  cause  or  hasten  his  death.  The  claimant 
called  no  physicians,  but  other  witnesses  testified  that  the  deceas- 
ed had  worked  continuously  at  hard  labor  until  the  accident,  had 
apparently  been  in  good  health  at  all  times  theretofore,  and  had 
never  been  able  to  leave  his  bed  thereafter.  In  view  of  all  the  cir- 
cumstances, we  are  unable  to  say  that  it  conclusively  appears 
that  the  injuries  sustained  had  no  part  in  causing  his  death,  nor 

89.     Ward  v.  Indus.  Ace.  Comm.   of  the  State  of  Gal.  175  Cal.  42,  161 
Pac.  1123,   15  Nv  C.  C.  A.   223. 


790 


ACCIDENT  ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §    319 

that  the  trial  court  was  concluded  by  the  testimony  of  the  ex- 
perts."90 

A  teamster  was  found  bruised  and  crushed  between  the  wheels 
of  his  wagon  in  a  washout,  as  it  appeared,  when  he  was  on  his 
way  to  return  the  team  to  the  barn.  There  was  evidence  that  de- 
ceased was  a  sober,  healthy  man,  although  on  account  of  the  cold 
he  and  another  driver  had  taken  whiskey  while  on  the  way  home. 
The  board  found  that  his  death  was  due  to  injuries  sustained 
when  his  wagon  struck  the  washout,  throwing  him  beneath  the 
wheels  of  the  wagon,  and  that  the  injury  or  accident  causing 
the  death  arose  out  of  the  employment.91 

A  teamster  left  his  wagon  to  collect  receipts  which  had  been 
scattered  by  the  wind,  and  was  struck  by  a  passing  automobile 
and  fatally  injured.  The  court,  in  holding  that  the  injury  arose 
out  of  and  in  the  course  of  his  employment,  said:  "In  the  case  at 
bar  the  employment  of  Kearney  to  drive  a  team  through  the 
public  streets  and  deliver  goods  required  of  him  every  reasonable 
and  lawful  effort  to  accomplish  his  task.  His  work  did  not  re- 
quire him  to  stay  on  his  wagon.  He  was  bound  in  the  perform- 
ance of  his  duty  to  use  the  street  to  deliver  goods,  to  regain  pack- 
ages or  papers  fallen  from  the  wagon,  as  also  to  care  for  his 
horses,  adjust  the  harness  and  repair  the  wagon,  if  necessary. 
It  is  manifest  he  might  be  injured  while  in  the  street  in  the  per- 
formance of  duty,  and  it  is  plain  his  employment  therein  exposed 
him  to  the  particular  injury  he  received."92 

Where  a  teamster,  upon  discovering  that  no  chute  with  which 
to  unload  coal  had  been  placed  upon  his  wagon,  went  to  a  near- 
by saloon  to  telephone  for  one,  in  accordance  with  his  instruc- 
tions covering  such  cases,  and  was  struck  by  a  passing  automo- 
bile and  seriously  injured,  the  court  held  that  the  evidence  justi- 
fied the  board  in  finding  that  at  the  time  of  deceased's  death  he 

90.  State  ex  rel.  Jefferson  v.  District  Court  of  Ramsey  Co.,  138  Minn. 
334,  164  N.  W.  1012,  15  N.  C.  C.  A.  645. 

01.  Leary  v.  Mcllvain,  (1919),  106  All.  785,  263  Pa.  499,  4  W.  C.  L.  J.  453; 
Brisco  v.  Englert,  4  N.  Y.  St.  Dep.  345. 

92.  Keaney's  Case,  (1919),  232  Mass.  532,  122  N.  E.  739,  4  W.  C.  L.  J. 
J.  103,  18  N.  C.  C.  A.  1039. 

791 


§  320  WORKMEN'S  COMPENSATION  LAW 

was  doing  the  very  thing  that  he  was  supposed  to  do,  and  that 
his  injury  was  due  to  an  accident  arising  out  of  and  in  the  course 
of  the  employment.93 

A  driver  of  a  delivery  wagon  for  a  florist,  who  was  supposed 
to  assist  in  delivering  when  his  services  were  needed  for  this  pur- 
pose, was  injured  when  he  fell  from  a  ladder,  while  adjusting  a 
window  box  in  a  house  where  he  had  delivered  flowers.  The  court 
held  that  in  rendering  these  services  to  a  customer,  decedent  had 
departed  from  his  employment  and  therefore  the  injury  did  not 
arise  out  of  the  employment.94 

Where  a  driver  of  a  truck  and  deceased,  employees  of  a  team- 
ster, sent  to  haul  goods  to  a  station  after  loading  boxes  which 
were  on  a  platform,  used  an  elevator  to  move  goods  from  a  top 
floor,  they  did  not  depart  from  the  scope  of  their  employment, 
and  riding  on  the  elevator  with  the  boxes  did  not  amount  to  a 
deliberate  and  reckless  indifference  to  danger  which  would  bar 
a  recovery.95 

§  320.  Drowning. — A  repair  man  about  furnaces  was  found 
drowned  in  a  river  bordering  on  the  premises  of  the  plant.  It  ap- 
peared from  the  evidence  that  at  times  the  heat  from  the  furn- 
aces became  intense,  and  that  gas  was  likely  to  and  did  escape, 
and  when  inhaled  by  the  workmen  that  they  went  outside  for 
air,  and  that  the  usual  place  to  go  was  to  the  river  bank.  The  evi- 
dence further  showed  that  on  the  night  in  question  there  was  no 
gas  about  the  furnace  and  no  repairs  were  made.  In  the  absence 
of  any  direct  evidence  as  to  the  manner  in  which  deceased  met 
his  death,  it  was  contended  that  the  reasonable  inference  to  be 
drawn  was  that  he  had  gone  to  the  river  in  the  performance  of 
his  duties,  accidentally  fell  in  and  was  drowned.  The  court  held 
that  the  burden  of  proving  that  the  accident  arose  out  of  the  em- 
ployment, while  deceased  was  performing  his  duties,  rested  upon 
applicant,  and  he  failed  to  discharge  this  burden.  A  showing  of 

93.  Consumer's  Co.  v.  Ceislik,  (1919),  —  Ind.  App.  — ,  121  N.  E.  832,  3 
W.  C.  L.  J.  620,  18  N.  C.  C.  A.  1040. 

94.  Glatzl  v.  Sturapp,  220  N.  Y.  71,  114  N.  E.  1053. 

95.  Colbourn    v.  Nichols,  109   Atl.   882,    —Del.    Sup.   Ct.  — ,    (1920),  6 
W.  C.  L.  J.  140. 

792 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPOYMENT.        §   320 

facts  which  are  equally  compatible  with  two  views  will  not  sus- 
tain applicant's  claim,  but  would  simply  amount  to  the  basing  of 
an  award  upon  imagination,  speculation,  or  conjecture." 

A  cook,  who  was  employed  aboard  a  tugboat,  went  ashore  to 
purchase  provisions,  which  was  part  of  his  duties,  and  upon  re- 
turning with  a  portion  of  the  provisions,  fell  overboard  from  a 
wharf,  to  which  his  boat  was  moored,  and  was  drowned.  The 
court  held  that  at  the  time  of  the  accident  deceased  was  perform- 
ing a  part  of  his  duties.  The  risk  was  one  occasioned  by  the  na- 
ture of  his  employment.  The  injury  was  traceable  to  the  nature 
of  his  work  and  to  the  risks  which  his  employer's  work  exposed 
him.  Therefore  the  accident  arose  out  of  the  employment.07 

A  captain  of  a  tugboat  was  discharged  for  intoxication,  and 
paid  off  about  11 :30  a.  m.  He  stayed  around  the  boat  for  some- 
time, and  finally,  after  dinner  at  about  1:30  p.  m.,  he  started  for 
the  shore  and  was  never  seen  alive  again.  His  body  was  found  in 
the  river  in  the  vicinity  of  the  pier  several  months  later.  The 
court  on  appeal  said:  "If  it  be  considered  that,  after  the  dis- 
charge of  the  deceased,  his  employment  continued  a  reasonable 
length  of  time,  to  enable  him  to  remove  his  belongings  from  the 
boat,  it  must  nevertheless  have  ceased  immediately  upon  his  leav- 
ing it.  It  cannot  be  inferred  that  he  fell  into  the  water  while  in 
the  act  of  leaving  the  boat,  or  prior  thereto,  rather  than  after 
leaving  it  he  fell  from  the  dock,  while  proceeding  along  its  edge 
in  an  intoxicated  condition.  Indeed,  it  would  seem  that,  if  he 
fell  wrhile  in  the  act  of  leaving,  the  engineer  who  sa\v  him  start 
for  shore  would  have  heard  a  splash  of  water  when  he  struck  it, 
or  heard  him  cry  for  help.  Only  a  mere  guess  leads  to  the  con- 
clusion that  the  deceased  fell  into  the  water  prior  to  attaining  a 
secure  foothold  upon  the  pier.  There  was  no  proof,  therefore, 

96.  Wisconsin  Steel  Co.  v.  Indus.  Commission,  288  111.  206,  (1919),  123 
N.  E.  295,  4  W.  C.  L.  J.  168. 

97.  Westman's  Case,  118  Maine   133,    (1919),  106  Atl.  532.  4  W.  C.  L. 
J.  213;    State  ex  rel.     McCarthy  Bros.  Co.  v.  District  Court  of  Hennepin 
Co.,  141  Minn.  61,  169  N    W.  274,  17  N.  C.  C.  A.  959;    Proctor  v.  Serbino 
(Owners  of),  (1915),  3  K.  B.   344,    (1915).  W.  C.  &  Ins.   Rep.  425,  10  N. 
C.  C.  A.  618;  In  re  Martin  H.  Ash.,  2nd  A.  R.  U.  S.  C.  C.  241. 


793 


§•  320  WORKMEN'S  COMPENSATION  LAW 

that  the  deceased  came  to  his  death  through  an  accident  arising 
in  the  course  of  his  employment."98 

A  nightwatchman  left  his  usual  place  of  employment  and  went 
to  visit  the  owner  of  a  boat,  which  was  lying  along  side  the  place 
of  his  employment.  Upon  returning  he  attempted  to  jump  from 
the  boat  back  to  the  dock,  and  fell  into  the  water,  dying  from  the 
exposure.  The  court  held  that,  in  abandoning  his  duties,  de- 
ceased left  the  scope  of  his  employment,  and  his  injury  was  not 
a  natural  incident  of  his  work.  It  was  neither  a  risk  connected 
with  his  employment,  nor  a  risk  arising  out  of  his  employment. 
The  accident  resulted  from  the  act  of  the  claimant's  intestate, 
disconnected  wholly  from  the  sphere  of  his  employment.80 

An  employee  of  an  amusement  park,  whose  duties  included 
operating  a  boat  carrying  passengers  for  hire,  was  drowned.  It 
appeared  that  after  discharging  his  load  of  passengers  he  pro- 
ceeded to  another  landing,  having  in  the  boat  a  young  woman 
who  was  not  a  passenger  for  hire.  When  he  stepped  from  the 
boat,  the  boat  slipped  away.  He  attempted  to  get  back  into  the 
boat  by  leaping,  but  fell  in  the  water.  He  caught  hold  of  the  bow 
of  the  boat.  The  young  lady  offered  to  assist  him  but  he  declined 
her  assistance,  dropped  from  the  boat,  and  began  to  swim  on  his 
back  to  the  stern  of  the  boat.  When  about  20  feet  from  the  stern 
of  the  boat  he  sank  and  was  drowned.  Earlier  in  the  day  he  had 
boasted  of  his  abilities  as  a  swimmer.  In  affirming  a  judgment 
for  compensation,  the  court  said:  "It  is  insisted  that  the  evi- 
dence does  not  justify  the  finding  and  ruling  of  the  commission 
that,  after  Boyler  had  fallen  into  the  water  and  began  to  swim 
upon  his  back  toward  the  stern  of  the  boat,  such  act  was  not  a 
departure  from  the  course  of  his  employment.  An  examination  of 
the  evidence  shows  that  it  was  just  as  reasonable  to  infer  that 
Boyler  was  attempting  to  get  into  the  boat  as  that  he  was  making 

98.  In  re  Whalen,  173  N.  Y.  Supp.  856,  (1919),  18  N.  C.  C.  A.  1037,  3 
W.  C.  L.  J.   510,  186  App.  Div.  190. 

99.  King  v.  Standard  Oil   Co.  of  New  York,  184  N.  Y.  App.  Div.  453, 
171  N.  Y.  S.  1032,  17  N.  C.  C.  A.  938. 

794 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMPLOYMENT.          §   320 

an  exhibition  of  his  skill  as  a  swimmer,  of  which  he  had  just 
previously  been  boasting."1 

Where  an  employee  on  a  boat,  while  in  an  intoxicated  condi- 
tion, attempted  to  go  ashore  in  a  small  boat  in  search  of  more 
whiskey,  and  was  drowned,  it  was  held  that  the  accident  was  due 
to  the  employee's  intoxication,  the  court  saying:  "If  Collins  was 
in  an  intoxicated  condition,  that  is,  a  condition  in  which  he 
would  be  unable  to  look  out  for  his  own  safety  with  that  degree 
of  care  which  a  person  would  otherwise  naturally  exercise,  and 
that,  while  so  influenced,  he  did  something  which  a  person  in  a 
normal  condition  would  not  be  likely  to  attempt  and  which 
brought  about  the  accident,  the  trial  court  would  be  warranted 
in  finding  that  the  accident  resulted  from  the  condition  into 
which  he  had  voluntarily  brought  himself.  We  do  not  think  that 
the  statute  requires  that  every  possibility  should  be  excluded  be- 
fore the  evidence  becomes  sufficient  to  support  the  finding  that 
the  result  was  due  to  intoxication.  We  think  that  the  intoxica- 
ted condition  of  the  decedent  is  fully  substantiated  by  the  evi- 
dence, and  that  his  reckless  and  unnecessary  act  in  going  into 
and  standing  up  in  a  small  boat,  easily  capsizable,  was  a  danger- 
ous act  which  would  be  apparent  to  any  sober  person.  The  very 
fact  that  he  elected  to  make  use  of  this  small  boat,  instead  of  the 
larger  yawl,  which  was  lying  close  to  it  and  was  equally  avail- 
able, is  further  evidence  of  his  condition  and  of  his  inability 
therefrom  to  properly  care  for  himself."* 

An  assistant  engineer  on  a  dredge  was  drowned  while  attempt- 
ing to  save  the  dredge  from  destruction  during  a  storm.  The  trial 
court  found  that  the  sinking  of  the  dredge  was  due  to  the  violence 
of  the  storm,  and  that  the  death  of  the  engineer  was  due  to  an 
accident  arising  out  of  the  employment.  In  affirming  the  decision, 
the  court  said:  "The  nature  of  the  employment,  the  conditions 
under  which  it  was  to  be  and  was  pursued,  the  exposure  to  prob- 

1.  Boyle  v.  Mahoney  &  Tiernay,  92  Conn.  404,  103  All.  127,  16  N.  C. 
C.  A.  893,  1  W.  C.  L.  J.  938. 

2.  Collins    v.   Cole,  40   R.  I.  66,  99  Atl.  830,  14  N.   C.  C.  A.  290;     In 
re  Pope,  177  N.  Y.  App.  Dlv.   69,  163  N.  Y.   S.  655,  14  N.  C.  C.  A.  293; 
Mclntyre   v.  Stewart,    (1915),   Sc.  L.  T.  288,   (1915),  W.  C  ft    Ins.  Rep. 
550,  14  N.  C.  C.  A.  294. 

795 


P>20  •WOIJIOII  N'F>    COMPENSATION    LAW 


able  injury  from  reasonably  to  be  expected  storms  of  similar 
character  were  all  matters  incident  to  such  a  risk  as  was  here 
underwritten,  and  therefore  an  injury  maturing  such  a  risk,  we 
think,  could  well  be  said  to  have  been  incidental  to  and  to  have 
arisen  out  of  that  employment."3 

Where  a  cook  on  a  steamship  gave  orders  to  his  helper  to  put 
certain  articles  on  the  stove  to  cook,  and  then  left  the  galleys  and 
disappeared,  it  was  held  that  there  was  no  evidence  whatever  to 
justify  a  finding  that  deceased  met  with  an  accident  arising  out 
of  the  employment.4 

A  floatman,  whose  duties  were  to  check  up  and  secure  cars  being 
transported  upon  a  float,  was,  upon  arrival  of  his  float  at  its  slip, 
ordered  by  his  superior  to  take  his  belongings  and  go  upon  another 
float  and  await  the  arrival  of  a  tug.  A  few  minutes  later  his 
lantern  and  gears  were  found  upon  the  float,  and  his  body  was 
found  a  few  days  later  floating  in  the  slip.  It  was  held  that  there 
was  sufficient  evidence  to  justify  an  inference  that  deceased  met 
his  death  as  the  result  of  an  accident,  which  arose  out  of  the  em- 
ployment. The  case  was,  however,  sent  back  on  questions  of  de- 
pendency.5 

An  employee  was  drowned  as  a  result  of  ice  breaking  upon  a  pond 
over  which  he  was  crossing.  There  was  a  more  circuitous  route 
around  the  pond  leading  to  deceased's  home.  The  pond  was  on 
the  premises  and  under  the  control  of  the  employer.  In  affirming 
a  finding  that  the  accident  arose  out  of  and  in  the  course  of  the 
employment,  the  court  said:  "While  the-  employee's  work  for 
the  day  had  been  finished  and  he  was  on  his  way  home  at  the 
time  of  the  fatal  accident,  still  it  is  settled  that  an  injury  to  a 
workman  may  arise  out  of  and  in  the  course  of  his  employment 

3.  Southern  Surety  Co.  v.  Stubbs,   (Tex.  App.     Div.),    199  S.  W.  343, 
15  N.  C.  C.  A.  276;    Milwaukee  Western  Fuel  Co.  v.  Indus.   Comm.,  159 
Wis.  635,  150  N.  W.  998,  12  N.  C.  C.  A.  76;    Cino  v.  Morton  &  Gormon, 
Contracting  Co.,  5  N.  Y.  St.  Dep.  Rep.   387,  12  N.  C.  C.  A.  79. 

4.  Lynch   v.    Crown  Steamship    Co.,  Ltd.  32  Sheriff  Ct.  Rep.  135,  12 
N.  C.  C.  A.  68;    Burwash  v.  Frederick  Leyland  &  Co.  Ltd.,   (1912),  W.  C. 
&  Ins.  Rep.  400,  107  L.  T.  735,  5  B.  W.  C.  C.  663. 

5.  Tirre  v.  Bush  Terminal    Co.,  172   N.    Y.    App.    Div.  386,  158  N.  Y. 
Supp.  883,  12  N.  C.  C.  A.  64. 

796 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.          §    320 

even  if  he  is  not  actually  working  at  the  time  of  the  injury."  The 
court  said  that  the  finding  that  th<»  pond  was  in  the  control  of 
the  employer  and  that  the  crossing  over  it  on  the  ice  was  "the  rea- 
sonable and  customary  way"  for  deceased  to  reach  his  home,  and 
that  he  and  other  employees  who  lived  in  the  same  direction 
*' crossed  it  this  way  regularly,"  warranted  the  further  finding 
that  the  injury  occurred  in  the  course  of  the  employment." 

A  workman,  who  was  employed  in  building  a  bridge  over  a 
river,  was  last  seen  alive  at  his  home,  some  miles  from  where  he 
\\.is  employed,  which  was  about  two  hours  before  he  was  to  re- 
turn to  work.  His  body  was  afterwards  found  in  the  bay,  but 
there  was  no  evidence  as  to  how  he  came  to  his  death.  It  was  held 
that,  in  the  absence  of  evidence,  it  might  be  inferred  that  deceased 
came  to  his  death  by  accident,  but  it  could  not  be  inferred  that 
the  accident  arose  out  of  the  employment.7 

A  workman,  whose  duty  it  was  to  remove  rubbish  from  a  flume, 
which  supplied  water  for  his  employer's  mill,  was  seen  standing 
on  an  unrailed  walk,  using  a  rake,  with  his  back  towards  the  river. 
A  few  days  later  his  body  was  found  in  the  water,  together  with 
a  rake  handle.  It  was  held  that  the  evidence  justified  a  find  in-.: 
that  he  was  killed  by  an  accident  arising  out  of  and  in  the  course 
of  the  employment.8 

Where  a  servant  was  drowned  in  an  attempt  to  save  the  life  of  a 
fellow  servant,  it  was  held  that  his  death  was  due  to  an  accident 
arising  out  of  the  employment.9 

A  deck  hand,  who  helped  load  and  unload  a  barge  at  its  terminii. 
was  drowned  while  riding  between  such  terminii.  It  was  held 
that  the  death  was  due  to  an  accident  arising  out  of  th«  employment, 
even  though  he  had  no  active  duties  to  perform  while  enroute..10 

6.  In  re  Stacy,  225  Mass.  174,  114  N.  E.  206,  15  N.  C.  C.  A.  244. 

7.  Henry  Steers  Inc.  v.  Dunnewald,  85  N.  J.  L.  449,  89  All.  1007,  4   N. 
C.  C.  A.  676. 

8.  Boody  v.  K.   &   C.  C.   Mfg.  Co.,  77  N.  H.  208,  90  Atl.   859,   5  N.  C. 
C.  A.  840.  L.*R.  A.  1916A,  10. 

9.  Mathews  v.   Bedworth.  1   W.  C.  C.  124. 

10.  Hideout  Co.  v.  Pillsbury,  173  Cal.  132.  159  Pac.  435,  12  N.  C.  C.  A. 
1032. 

797 


§  321  WORKMEN'S  COMPENSATION  LAW 

A  traveling  salesman  was  drowned  when  the  steamship  Lusi- 
tania  was  sunk  by  a  German  submarine.  The  salesman  was  enroute 
to  London  on  his  master's  business  and  with  his  master's  knowledge. 
It  was  held  that  the  accident  arose  out  of  the  employment,  irre- 
spective of  the  lawfulness  of  the  attack.11 

§  321.  Electrical  Shock  and  Electrocution. — An  employee  was 
electrocuted  when  he  took  hold  of  an  electric  wire  for  the  purpose 
of  attaching  it  to  a  bucket,  with  which  to  draw  gasoline  from  a 
tank.  There  was  a  goverment  order  against  the  using  of  gasoline 
for  promiscuous  purposes,  but  this  order  seems  to  have  been  dis- 
obeyed to  the  knowledge  of  the  employer.  The  board  made  an 
award  for  deceased's  death.  Tn  affirming  the  award,  the  court 
said  that,  "an  employee,  who,  in  an  honest  attempt  to  discharge 
a  duty  assigned  him,  does  an  act  incidental  thereto  not  specifically 
directed,  or  departs  from  the  usual  methods  of  performing  his 
work,  does  not  thereby  necessarily  deprive  himself  or  his  dependents, 
of  a  right  to  compensation,  if  injured  while  so  engaged;"  that, 
"an  employee  may  be  said  to  receive  an  injury  by  accident  arising 
in  the  course  of  his  employment  within  the  meaning  of  the  Work- 
men's Compensation  Act  of  this  state  when  it  occurs  within  the 
period  of  the  employment,  at  a  place  where  the  employee  may 
reasonably  be,  and  while  he  is  doing  something  reasonably  connect- 
ed with  the  discharge  of  the  duties  of  his  employment."12 

Where  a  warehouse  employee,  who  went  into  a  wash  room  to 
clean  up  after  the  day's  work,  was  killed  by  an  electric  wire 
carrying  114  volts  of  current  while  he  was  in  the  act  of  washing 
in  a  basin  provided  by  the  master,  the  wire  having  been  used  in  the 
master's  business,  it  was  held  that  he  suffered  an  accident  arising 
out  of  and  in  the  course  of  his  employment.  The  mere  fact  that 
the  wire  -may  have  been  placed  on  the  wash  basin  in  a  spirit  of 
horseplay,  would  not  defeat  a  recovery  of  compensation  if  the 
deceased  himself  was  not  engaged  in  the  horseplay,  and  the  fact 
that  the  current  which  was  only  114  volts,  would  not  ordinarily 

11.  Foley  v.-  Home  Rubber  Co.,  89  N.  J.  L.  474,  99  Atl.  624. 
Note:     For  additional  cases  on  drowning,  see  section  270. 

12.  Nordyke   &   Marman   Co.   v.   Swift,    (Ind.   App.),   123   N.   E.   449, 
(1919),  18  N.  C.  C.  A.  1021. 

798 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.          §   321 

kill  a  strong  man  is  immaterial,  if  it  is  shown  by  the  evidence  that 
it  produced  fatal  results  in  the  present  case.13 

Where  a  carpenter,  engaged  in  work  upon  one  of  defendant's 
cars,  came  in  contact  with  an  electric  wire  carrying  550  volts  of 
current  and  was  electrocuted,  it  was  held,  in  the  absence  of  any 
direct  evidence  as  to  the  circumstance  surrounding  the  accident, 
that  the  death  was  caused  by  an  accident  arising  out  of  the  em- 
ployment.14 

A  lineman,  in  the  employ  of  the  Mississippi  River  Power  Com- 
pany, who  was  not  an  expert  in  this  particular  business  but  was 
a  helper  of  one  of  the  experts,  came  in  contact  with  that  portion 
of  the  electric  field  from  which  the  current  had  not  been  excluded 
and  was  killed.  The  court,  in  holding  that  the  accident  arose  out 
of  the  employment,  said:  "Hayward  was  employed  in  repairing 
the  tower,  and  the  prohibition  against  going  near  the  live  wire 
referred  to  his  conduct  in  doing  that  work.  There  is  no  evidence 
that  he  had  undertaken  to  do  anything  outside  of  his  employment. 
While  no  one  testified  to  the  particular  act  he  was  doing  at  the 
time  he  was  struck,  if  he  was  doing  anything,  it  is  evident  that 
he  was  on  the  tower  for  the  purpose  of  doing  his  work  in  the 
course  of  his  employment,  and  his  contributory  negligence  in 
carelessy  failing  to  observe  the  direction  not  to  go  near  the  live 
wire  does  not  relieve  his  employer  from  liability  to  make  com- 
jM-nsation.  The  theory  of  the  defendant  in  error  is  that  Hay  ward 
deliberately  disobeyed  orders  and  walked  across  the  rack  into 
the  field  of  the  live  wires.  The  conclusion  may  fairly  be  drawn  from 
the  evidence  that  through  his  inexperience  or  carelessness  he  moved 
too  close  to  the  live  wires,  and  in  such  case  the  determination 
of  the  commission  concludes  the  court."18 

13.  Hollenbach   Co.     v.   Hollenbach,    181   Ky.   262,   204    S.    W.    152,   2 
W.  C.  L.   J.    492,  16  N.    C.  C.  A.    879;     Newport  Hydro.    Carbon  Co.   v. 
Indus.  Com.  of  Wis.,  167  Wis.  630,  167  N.  W.   749.  2  W.   C.  L.  J.  421,  1C 
N.  C.  C.  A.  924. 

14.  Bloomington  D.  &  C.  R.  Co.  v.  Indus.  Bd.  of  111..  276  111.  454.  114  N. 
E.  939,  14  N.  C.  C.  A.  140. 

15.  Mississippi  River  Power  Co.  v.  Indus.  Comm..  289  111.  353,   (1919), 
124  N.  E.  552.  5  W.  C.  L.  J.  50. 

799 


§  322  WORKMEN'S  COMPENSATION  LAW 

Where  a  carpenter  in  a  shop  was  killed  by  an  electric  current 
when  he  attempted  to  turn  on  the  current  by  means  of  a  switch, 
for  the  purpose  of  putting  in  motion  a  grindstone,  on  which  he  was 
going  to  sharpen  a  chisel,  it  was  held  that  in  so  doing  he  was 
acting  within  the  scope  of  his  employment  and  that  his  death  was 
due  to  an  accident  arising  out  of  the  employment16 

An  experienced  lineman  refused  to  use  gloves  furnished  by  the 
employer.  This  was  in  violation  of  positive  rules  against  handling 
hot  wires  without  rubber  gloves,  and  was  also  in  violation  of  an 
express  order  from  the  foreman  at  the  time.  The  employee  came 
in  contact  with  the  wire  and  received  a  shock  causing  his  death. 
It  was  held  that  the  decedent  was  guility  of  such  wilful  misconduct 
as  to  place  him  without  the  scope  of  his  employment,  and  was 
not  injured  by  an  accident  arising  out  of  the  employment.17 

A  janitor  in  defendant's  office  building  was  furnished  by  the 
defendant  with  living  quarters.  His  wife  was  managing  a  res- 
taurant for  defendant.  Upon  request  of  his  wife,  he  started  to 
carry  a  basket  of  laundry  to  the  restaurant,  and  was  killed  by  a 
live  wire  falling  on  him.  It  was  held  that  the  duties  of  deceased 
did  not  include  carrying  of  laundry  or  assisting  his  wife  in  the 
care  of  the  restaurant,  and  therefore  the  accident  did  not  arise 
out  of  and  in  the  course  of  the  employment.18 

§  322.  Emergency. — Where  an  employee  in  a  shirt  cutting 
factory  volunteered  to  save  his  employer  and  others  from  injury 
during  a  raid  by  strikers  and,  in  so  doing  was  fatally  injured, 
it  was  held  that  the  injury  arose  out  of  and  in  the  course  of  his 
employment,  the  court  saying:  "While  there  must  be  some 

16.  Wendt   v.  Indus.    Ins.  Comm    of  Washington,  80  Wash.  Ill,    141 
Pac.  311,  5  N.  C.  C.  A.  790;    Houghton  v.  W.  G.  Root  Const.  Co.,  35  N. 
J.  L.  J.   332. 

17.  Great  Western  Power  Co.  v.  Pillsbury,  170   Cal.  180,  149   Pac.  35, 
9  N.   C.  C.  A.  466. 

18.  Murphy  v.  Ludlum  Steel  Co.,  182  App.  Div.  139,  169  N.  Y.  S.  781,  1 
W.  C.  L.  J.  1122. 

Note:  For  further  cases  of  electric  shock  and  death  from  electrocution 
see  "Acts  Not  Constituting  Wilful  Misconduct."  §  283,  note  15  and  19 
see  also  "Acts  Constituting  Wilful  Misconduct,  §  284,  note  40.  See  Sportive 
Acts  §  285,  note  54  and  59. 

800 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMPLOYMENT.        §   322 

causal  relation  between  the  employment  and  the  injury,  it  is  not 
necessary  that  the  injury  be  one  which  ought  to  have  been  fore- 
seen or  expected.  It  must,  however,  be  one  which,  after  the 
event,  may  be  seen  to  have  had  its  origin  in  the  nature  of  the 
employment.  Such  was  our  holding  in  Pekin  Cooperage  Co.  v. 
Industrial  Com.,  285  111.  31,  120  N.  E.  530.  Where  a  workman 
voluntarily  performs  an  act  during  an  emergency,  which  he  has 
reason  to  believe  is  in  the  interest  of  his  employer,  and  is  injured 
thereby,  he  is  not  acting  beyond  the  scope  of  his  employment. 
An  assault  arises  out  of  one's  employment  in  a  case  where  the 
duties  of  the  employee,  under  the  particular  situation,  are  such 
as  are  likely  to  cause  him  to  have  to  deal  with  persons  who,  un- 
der the  circumstances,  are  liable  to  attack  him.  Ohio  Building 
Vault  Co.  v.  Industrial  Board,  277  111.  96,  115  N.  E.  149.  Such 
was  the  situation  in  this  case.  Deceased  was  assaulted^  not  for 
anything  he  had  done,  but  because  he  was  in  the  employ  of  the 
plaintiff  in  error,  who  was  in  bad  favor  with  the  union  on  ac- 
count of  not  having  complied  with  its  demands.  We  are  there- 
fore of  the  opinion  that  the  injury,  which  occurred  in  the  course 
of  the  employment,  arose  out  of  the  employment.19 

An  employee  was  injured  when  he  attempted  to  save  a  child 
from  being  run  down  on  the  company's  premises  by  an  automo- 
bile, driven  by  the  president  of  the  company,  who  was  there  on 
the  company's  business.  It  was  held  that  the  injury  arose  out 
of  the  employment,  the  court  saying:  "Nelson  was  injured  in  the 
course  of  his  employment.  To  be  sure,  he  was  not  employed  to 
rescue  children.  But  certainly  it  was  reasonably  within  the 
course  of  his  employment,  within  the  scope  of  those  things  which 
might  reasonably  be  expected  of  him  as  an  employee,  that  he 
should  attempt  to  prevent  an  accident  on  his  employer's  prem- 
ises, particularly  where  the  employer  would  not  improbably  be 
responsible  for  the  accident.  It  is  not  difficult  to  imagine  how 
summarily  the  services  of  an  employee  would  be  dispensed  with, 
who,  seeing  that  such  an  accident  was  about  to  happen,  held  back 
and  did  nothing  to  prevent  it  on  the  excuse  that  it  did  not  come 

19.     Baum  v.  Indus.  Coram..    (1919),  288  111.  516.  123  N.  E.  625.  4  W. 
C.  L.  J.  367. 

801 
W.  C.— 51 


§  322  WORKMEN'S  COMPENSATION  LAW 

within  the  scope  of  his  employment.  If,  in  this  case,  Nelson,  in- 
stead of  being  injured  in  an  attempt  to  prevent  a  child  being  run 
over  on  his  employer's  premises  by  an  officer  of  his  employer 
.there  on  his  company's  business,  had  been  injured  in  an  attempt 
to  put  out  an  incipient  fire  accidentally  started  in  the  barn,  it 
'is  hardly  possible  that  any  question  would  have  been  made.  Yet 
•^tliere  is  no  real  distinction  between  the  two  cases.  Nelson  was 
'no  more  employed  to  put  out  fires  than  he  was  to  rescue  children. 
The  point  is  that  the  danger  which  threatened,  and,  in  attempt- 
ing to  remove  which,  he  was  hurt,  was  one  which  threatened  his 
employment  and  directly  concerned  it,  and  with  which  Nelson 
was  confronted  in  the  discharge  of  his  customary  duties."20 

An  employee  of  a  mining  company  was  assisting  other  em- 
ployees to  replace  a  derailed  car,  and  was  led  to  believe  by  the 
yells  of  "a  fellow  employee  that  the  car  was  about  to  tip  over  up- 
on him.  He  jumped  to  avoid  injury,  and  in  so  doing  fell,  strik- 
an  open  slag  spout,  thereby  seriously  injuring  his  leg.  The  court 
held  that  the  injury  was  occasioned  by  a  condition  or  conditions 
of  the  employment  and  therefore  arose  out  of  the  employment.21 
An  employee  responded  to  a  call  for  assistance  by  a  fellow 
employee,  who  had  been  overcome  by  gas  fumes  in  a  vinegar 
vat.  While  endeavoring  to  rescue  his  fellow  employee  he  was 
overcome  by  the  fumes  and  died.  There  were  express  instruc- 
tions against  any  one  entering  the  vat.  In  affirming  an  award, 
and  in  holding  that  the  accident  arose  out  of  the  employment,  the 
court  said:  "The  employer  has  a  pecuniary  interest  in  the  lives 
of  his  employees.  He  necessarily  relies  upon  their  labor  for  the 
conduct  of  his  business  out  of  which  he  expects  to  reap  a  profit, 
and  the  attempt  of  Russel  Engledove  (deceased)  to  rescue 
Thomas  Nelson,  the  servant  of  the  vinegar  company,  and  his 

20.  Ocean  Accident  &  Guar.  Corp.  Ltd.  v.  Indus.  Ace.  Comm.,    (1919), 
180   Gal.  389,   182   Pac.  35,  18  N.   C.   C.  A.  1018;   Waters   v.  Taylor,  218 
N,  Y.  248,  112  N.  E.  727,  L.  R.  A.   1917 A,  347;    United  States  etc.   Co.  v. 
Indus.  Ace.  Comm.,  174   Cal.  616,   163  Pac.   1013. 

21.  Calumet  &  A.  Mining  Co.   v.  Chambers,  20  Ariz.  54,  176  Pac.  839, 
18  N.  C.  C.  A.  1043;    Geary  v.  Metropolitan  St.  Ry.  Co.,  84  App.  Div.  514, 
17'Am'Neg.  Rep.  271,  82  N.  Y.  S.  1016,  16  N.  C.  C.  A.  562. 

'802 


ACCIDENT  ARISING  OUT  OK  COURSE  OF  EMPLOYMENT.         §    322 

fellow  employer,  must   l>e  regarded  ;is  having  been  made  in  tin- 
interest  and  for  the  benefit  of  such  common  employer."1 

An  employee  went  to  the  assistance  of  a  fellow  employee,  who 
w;is  working  within  a  few  feet  of  him  but  for  another  employer, 
when  he  was  caught  in  a  cavein.  A  second  cavein  occurred,  ser- 
iously injuring  the  employee  who  went  to  the  rescue,  and  he  died 
from  the  effects  of  his  injuries.  In  affirming  a  judgment,  which 
held  that  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment the  court  said:  "There  is  no  question  that  Waters' 
attempt  to  rescue  his  fellow  workman  immediately  led  to  his  own 
injuries,  and  therefore  the  only  debatable  phase  of  the  inquiry 
must  be  whether  his  general  employment  included  and  required 
or  authorized  the  attempt  to  rescue  from  sudden  peril  which 
threatened  his  life  a  fellow  laborer  working  only  a  few  feet  away 
on  the  same  general  undertaking,  although  for  a  different  employer. 
It  seems  to  us  that  this  act  should  be  regarded  as  an  incident  to 
and  within  the  fair  scope  of  his  employment  as  the  latter  should 
be  measured  for  the  purposes  of  the  workmen's  compensation 
act.  *  *  *  It  occurred  while  he  was  at  work  on  the  under- 
taking for  which  he  had  been  hired,  and  therefore  during  the 
course  of  his  employment.  It  was  his  employment  which  brought 
him  where  he  was,  and  in  a  general  sense  caused  him  to  be  con- 
fronted with  the  condition  and  emergency  which  he  sought  to 
meet.  His  act  was  prompted  by  the  relationship  existing  be- 
tween himself  and  a  fellow  workman,  caused  by  their  employ- 
ment on  a  common  undertaking.  It  must  have  been  within  the 
reasonable  anticipation  of  his  employer  that  his  employ. -ex  would 
do  just  as  Waters  did  if  the  occasion  arose,  for  it  is  quite  incon- 
ceivable that  any  employer  should  expect  or  direct  his  employ.  .^ 
to  stand  still  while  the  life  of  a  fellow  workman,  working  a  few 
feet  away,  was  imperiled  by  such  an  accident  as  occurred  here, 

22.  Gen.  Accident  Fire  and  Life  Assur.  Corp.  v.  Evans.  (Tex.  Civ. 
App.),  201  S.  W.  705,  16  N.  C.  C.  A.  920,  1  W.  C.  L.  J.  1148;  United 
States  Fidelity  &  Guaranty  Co.  v.  Indus.  Ace.  Comm.  of  Oal.,  174  Cal. 
616,  163  Pac.  1013,  15  N.  C.  C.  A.  271. 

803 


§  322  WORKMEN'S  COMPENSATION  LAW 

and  it  seems  to  us  that  the  accident  arose  out  of  his  employ- 
ment."23 

An  employee  was  engaged  by  a  lion  tamer  for  the  purpose  of  tak- 
ing care  of  baggage,  cleaning  out  the  cages,  and  to  make  himself 
generally  useful,  but  in  no  event  to  feed  the  lions.  While  in  charge 
of  the  cages,  in  the  absence  of  the  lion  tamer,  a  lion  escaped.  In 
an  effort  to  get  the  lion  back  into  his  cage  he  threw  a  chair  at  him 
which  caused  the  lion  to  turn  upon  and  kill  the  employee.  There 
was  no  evidence  as  to  how  the  lion  escaped  from  the  cage.  On  ap- 
peal it  was  held  that  having  been  left  in  charge  of  the  lions  it  was 
part  of  his  duty  to  endeavor  to  get  the  lion  back  into  his  cage,  and 
that  the  injury  arose  out  of  and  in  the  course  of  his  employment.2* 

Where  an  employee  was  injured  in  an  attempt  to  save  one  from 
injury  who  was  not  engaged  in  the  employment,  but  was  merely 
bothering  the  employees,  it  was  held  that  the  injury  received  did 
not  arise  out  of  the  employment,  no  matter  how  commendable  the 
act  might  have  been.25 

An  accident  to  a  workman  while  attempting  to  stop  his  master's 
runaway  horse,  although  his  work  was  in  no  way  connected  with 
horses,  was  held  to  be  an  accident  arising  out  of  the  employment.29 

An  employee,  who  was  engaged  in  different  kinds  of  work  about 
his  employer's  plant,  slipped  and  fell  into  an  opening,  which  had 
been  made  in  the  floor,  and  from  which  vapor  and  steam  was 
escaping,  making  it  impossible  to  see  the  opening.  He  fell  into 
hot  water,  and  screamed  for  help.  A  fellow  employee  ran  to  his 
assistance,  and  failed  to  see  the  hole  for  the  same  reason,  and  fell 
into  the  hot  water,  sustaining  injuries  from  which  he  died.  The 
court  held  that,  it  being  the  duty  of  an  employer  to  save  the  lives 

23.  Waters  v.  Wm.  J.  Raylor  Co.,  218  N.  Y.  248,  L.  R.  A.  1917A,  347, 
112  N.  E.  727,  15  N.  C.  C.  A.  270,  Affg.  170  N.  Y.  App.  Div.  942,  154  N.  Y. 
S.  1149;    Mihiaica  v.  Mlagenovich  &  Gillespie,  1  Cal.  I.  A.  C.  D.,  (1914), 
174,  10  N.  C.  C.  A.  477. 

24.  Hapelman  v.  Poole,  25  T.  L    R.  155,  2  B.  W.  C.  C.  48,  10  N.  C.  C. 
A.  489 

25.  Mullen  v  D.  Y.  Stewart  &  Co.  Ltd.,  (1908),  Ct.  of  Sess.  Gas.  991, 
45  Sc.  L.  R.  729,  1  B.  W.  C.  C  204,  10  N.  C.  C.  A.  490. 

26.  Kees  v.  Thomas,  (1899),  1  Q.  B.  1015,  58  L.  J.  K.  B.  539,  80  Law 
Times  578,  15  Times  Law  301,  1  W.  C.  C.  9;  Harrison  v.  Whitaker  Bros., 
2  W.  C.   C.   12,   16  Times  Law  Rep.   108. 

804 


ACCIDENT   ARISING  OUT  OF   COURSE  OF1  EMPLOYMENT.      §   322 

of  his  employees,  if  possible,  when  they  are  in  danger,  it  devolves 
upon  an  employee,  in  his  employ,  when  occasion  requires,  to  do  all 
he  can  to  save  a  fellow  employee,  when  all  are  engaged  in  their 
employment.  The  failure  of  an  attempt  to  rescue  a  fellow  em- 
ployee will  in  no  way  affect  the  legal  relation,  and  where  injury 
results  from  such  an  attempt,  the  same  occurs  from  an  accident 
arising  out  of  and  in  the  course  of  the  employment,  within  the 
meaning  of  the  statute.27 

A  street  car  company  employee,  in  the  performance  of  his  duty, 
was  trying  to  prevent  a  passenger  from  alighting  from  a  moving 
car,  when  he  fell  or  was  pushed  into  the  street,  sustaining  a  frac- 
ture of  the  skull  which  caused  his  death.  It  was  held  that  lii< 
death  was  due  to  an  accident  arising  out  of  and  in  the  course 
of  his  employment.28 

The  duties  of  an  employee  engaged  in  unloading  a  vessel  necessi- 
tated his  presence  on  the  quay,  and  not  on  the  vessel.  A  fellow 
employee  was  overcome  by  gas  in  a  hold  of  the  vessel.  Deceased 
volunteered  to  go  down  to  the  rescue  and  was  lowered  on  the  crane, 
but  he  was  also  overcome,  and  before  help  could  be  give'n  they 
both  died.  The  court,  holding  that  the  accident  arose  out  of  and 
in  the  course  of  the  employment,  said:  "I  cannot  doubt  that,  in 
a  sudden  emergency  where  there  is  danger,  a  workman  does  not 
go  out  of  his  employment  if  he  endeavors  to  prevent  the  danger 
from  taking  effect.  For  example,  if,  in  a  yard  where  a  man  is  work- 
ing, a  horse  suddenly  runs  off,  and  there  is  danger  to  others,  I 
would  hold  that,  if  the  man  did  his  best  to  stop  the  horse,  and  met 
with  an  injury,  he  suffered  that  injury  in  the  course  of  his  em- 
ployment. It  would  be  a  right  thing  to  do,  in  the  interest  of  the 
safety  of  those  in  the  yard,  and,  therefore,  in  the  interest  of  his 
master.  The  same  would  apply  to  the  endeavor  to  sprag  a  run- 
away wagon,  which  might  cause  loss  of  life."** 

27.  Dragovich  v.    The    Iroquois  Iron  Co.,  269  111.  478,  109  N.  B.  999, 
10  N.  C.  C.  A.  476;    Hully  v.  Moosbrugger,  87  N.  J.  L.  103,  93  All.  79,  3 
N.  a  C.  A.  283.    For  digest  of  this  case  see  "Sportive  Act." 

28.  Miller  v.  Public  Service  Ry.  Co..  35  N.  J.  L.  J.  115,  10  N.  C.  C    A 
479. 

29.  London  ft  E.  Shipping  Co.  v.  Brown,  7  P,  488,  42  Sc.  L.  R.  357,  10 
N.  C.  C.  A.  483;  Aitken  v.  Finalyson.  Bousfleld  ft  Co.,  Ltd.,  (1914),  W.  C. 

805 


§  323  WORKMEN'S  COMPENSATION  LAW 

A  load  of  coal  became  mired,  and  the  team  hitched  thereto  was 
unable  to  move  it.  The  driver  requested  plaintiff,  a  passerby,  to 
assist  in  removing  it,  and  while  so  doing  he  was  injured.  It  was 
held  that  the  driver  had  implied  authority  to  employ  someone  for 
this  temporary  purpose,  and  that  the  plaintiff  became  the  em- 
ployee of  the  coal  company  for  the  purpose  of  rendering  this  assis- 
tance, and  was  entitled  to  the  protection  of  the  Workmen's  Com- 
pensation Act.30 

Where  a  millwright,  on  leaving  the  plant  long  after  customary 
working  hours  discovered  a  fire  in  the  plant  and  returned  to  the 
building  to  put  it  out,  and  lost  his  life  in  the  fire.  The  court,  in 
holding  that  the  death  resulted  from  an  accident  arising  out  of 
and  in  the  course  of  the  employment,  said :  ' '  He  must  have  enter- 
ed the  building  voluntarily,  and  knowing  the  possibility  of  danger 
in  so  doing  from  its  being  then  on  fire.  But  it  is  a  reasonable 
inference  that  he  did  so  for  either  one  or  both  of  these  purposes : 
(1)  Under  the  specific  duty  devolving  upon  him  to  have  charge 
of  and  look  after  the  valuable  patterns  essential  for  the  work  be- 
ing done  by  his  employer ;  (2)  from  the  sense  of  obligation  to  use  a 
reasonable  amount  of  care  to  save  his  employer's  property  at  a 
time  of  such  emergency.  As  to  each  of  these  it  needed  no  specific 
instructions  from  any  superior  to  perform  such  services  or  volun- 
tarily assume  such  responsibility  while  making  an  effort  within 
the  field  of  reasonable  care  to  save  the  property  of  his  employer. 
While  so  doing  he  cannot  be  considered,  as  a  matter  of  law,  to  be 
a  stranger.  McPhee's  Case,  222  Mass.  1,  4,  109  N.  E.  633,  10  N. 
C.  C.  A.  257 ;  Munn  v.  Ind.  Brd.,  274  111.  70,  113  N.  E.  110,  12 
N.  C.  C.  A.  652.  We  do  not  think  that  either  the  letter  or  the 
spirit  of  the  Workmen's  Compensation  Act  requires  that  such  em- 
ployee should  be  penalized  for  obeying  such  a  natural  and  com- 
mendable instinct  on  his  part. ' ' 31 

&  Ins.  Rep.  398,  (1914),  2  Sc.  L.  T.  27,  51  Sc.  L.  R.  653,  7  B.  W.  C.  C.  918, 
10  N.  C.  C.  A.  483. 

30.  State  ex  rel.   Nienaber  v.  Dist.  Court   of  Ramsey   Co.,  138    Minn. 
416,  165  N.  W.  268,  1  W.  C.  L.  J.  642. 

31.  Belle  City  Malleable  Iron   Co.  v.  Rowland.    170   Wis.    293,   (1919), 
174  N.  W.  899,  5  W.  C.   L.  J.   333;    Munn  v.  Indus.  Bd.,   274    111.    70,  113 

806 


ACCIDENT  ARISING  OUT  OF  COURSE  OF  EMI'UJYMKXT.         §    i 

A  fircuiiin,  in  the  fire  department  of  the  civil  administration 
under  the  Isthmian  Canal  Commission,  was  injured  while  assisting 
in  extinguishing  a  fire  which  had  broken  out  in  a  building  in  Colon. 
The  place  where  he  sustained  his  injuries  was  without  the  limits 
of  the  Canal  /one.  It  was  held  that  the  man  acted  in  an  emer- 
gency, and  the  fact  that  he  was  without  the  limits  of  the  territory 
under  the  control  of  the  United  States,  was  not  under  these  cir- 
cumstances, sufficient,  to  exclude  him  from  the  operation  of  the 
act*1 

Two  butcher  boys  were  employed  on  a  wajjon,  and  one  fell  oil' 
ami  was  injured.  A  bystander  volunteered  to  ride  home  on  the 
wagon  in  order  to  assist  in  caring  for  the  injured  boy.  On  the 
way  home  the  volunteer  bystander  fell  off  and  was  injured,  and 
sought  to  hold  the  master  liable  on  the  gounds  of  implied  authority 
of  the  driver  to  hire  a  person  in  the  case  of  an  emergency.  The 
court  held  that  there  was  no  such  implied  authority  and  dismissed 
the  case/3 

An  employee,  who  was  left  in  temporary  charge  of  machinery, 
was  injured  when  he  attempted  to  remove  a  belt  to  prevent  its 
burning,  when  some  of  the  machinery  got  out  of  gear.  It  was 
held  that  the  injury  arose  out  of  the  employment.34 

"Where  a  demonstrator  of  automobiles,  fearing  a  collision,  threw 
out  his  arm  to  protect  himself,  and  his  arm  was  broken,  it  was 
held  that  the  injury  arose  out  of  the  employment.35 

A  laborer  fell  and  sustained  injuries  when  attempting  to  get 
away  from  the  danger  zone  where  a  blast  was  to  be  set  off.  It 
was  held  that  he  sustained  injuries  arising  out  of  the  employment.38 

§  323.  Erysipelas. — Where  an  employee  suffered  from  ery- 
sipelas, which  originated  from  the  infection  of  a  pimple  on  his 
face,  it  was  held  that,  in  the  absence  of  any  showing  that  the  in- 

N.  E.  110;    Alexander  v.  Indus.  Bd.,  281  111.  201,  117  N.  E.  1040.  1  W.  C 
L.  J.  313. 

32.  Re  James  Nellis,  Op.  Sol.  Dep.  C.  ft  L.  p.  221. 

33.  Houghton  v.  Pilkington,  107  L.  T.  R.  235. 

34.  Blackford  v.  Green  ft  Pieraon,  37  N.  J.  L.  J.  279. 

35.  Todd  v.  Drouet  ft  Page  Co.,  3  N.  Y.  St.  Dep.  351,  12  N.  C.  C.  A.  178. 

36.  Catardi  v.  Bridgeport  Contracting  Co.,  4  N.  Y.  St.  Dep.  410. 

807 


§  324  WORKMEN'S  COMPENSATION  LAW 

fection  came  from  anything  connected  with  the  employment,  it 
could  not  be  said  that  the  injury  arose  out  of  the  employment.37 

§  324.  Explosions. — A  station  agent  was  injured  by  an  ex- 
plosion, as  the  result  of  pouring  kerosene  upon  live  coals.  The 
rules  of  the  company  forbade  the  use  of  kerosene  in  this  manner. 
It  was  contended  that  the  employee  had  added  risk  to  his  employ- 
ment, and  therefore  the  accident  did  not  arise  out  of  the  employ- 
ment. On  appeal,  the  court,  in  >  affirming  a  finding  that  the  acci- 
dent arose  out  of  the  employment,  said:  "A  peril  which  arises 
from  the  negligent  or  reckless  manner  in  which  an  employee  does 
the  work  which  he  is  employed  to  do  may,  in  many  cases,  be  held 
to  be  a  risk  incidental  to  the  employment;  and  the  same  is  true 
where  he  performs  an  authorized  act  in  a  forbidden  manner,  a  dis- 
tinction being  taken  in  this  regard  from  cases  in  which  the  act 
is  altogether  outside  of,  and  unconnected  with,  the  employment 
Here  the  agent  was  rightfully  and  properly  attempting  to  start 
a  fire,  but  carelessly  used  the  wrong  kind  of  kindling.  This  was 
not  a  conscious,  voluntary  choice  between  a  safe  and  dangerous 
way  to  do  his  duty,  but  a  careless  use  of  a  combustible,  which  care- 
less use  endangered  his  life  and  seriously  injured  him,  but  just 
such  a  careless  use  as  was  frequently  made  of  kerosene  by  the  sta- 
tion agents  of  the  defendant  and  such  a  use  as  might  be  likely  to 
result  from  the  employment. ' ' 38 

A  traveling  salesman  for  chemical  compounds  was  killed  as  the 
result  of  an  explosion  in  a  creamery,  where  he  had  gone  to  sell 
soda  and  alkali.  It  was  contended  that,  while  the  accident  occurred 
in  the  course  of  the  employment,  it  did  not  arise  out  of  it.  The 
commission  found  that  the  accident  arose  out  of  the  employment, 
and  the  court  on  appeal  unanimously  affirmed  the  award.39 

An  electrician  was  severely  injured  by  the  explosion  of  a  dyna- 
mite cap,  when  he  lighted  a  match  for  the  purpose  of  smoking  a 
cigarette  upon  his  arrival  in  the  morning  at  the  place  of  employ- 

37.  Miller  v.  Libby  &  Blinn,   1  Conn.  C.  Dec.  377. 
Note:  See.  §  184  ante. 

38.  Benson  v.  Bush,  104  Kan.  198,  (1919,  178   Pac.  747,   3  W.  C.  L.  ,T. 
629,  18  N.  C.  C.  A.   1026. 

39.  Cain  v.  United  Breeder's  Co.,  224  N.  Y.   568,  120  N.  E.  858,  17  N. 
C.    C.  A.    938. 

808 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    324 

ment.  The  use  of  dynamite  caps  was  common  in  certain  branches 
of  the  employment,  but  there  was  nothing  in  the  evidence  to  ac- 
count for  the  presence  of  a  dynamite  cap  in  that  particular  place. 
In  holding  that  the  injury  arose  out  of  and  in  the  course  of  the 
employment,  the  court  said:  "It  arose  in  the  course  of  the  em- 
ployment because  of  the  fact  that  it  occurred  when  the  employee 
was  at  his  place  of  work  ready  to  begin  his  duties.  A  causal  con- 
nection between  the  employment  and  the  injury  *  *  *  is  shown 
by  the  use  of  dynamite  caps  upon  the  premises  and  the  presence 
thereof  in  the  room  where  the  plaintiff  was  regularly  employed. 
It  is  apparent  that  plaintiff  had  no  reason  to  anticipate  the  pres- 
ence of  dangerous  explosives  in  the  building  where  he  was  em- 
ployed. It  is  true  he  did  not,  in  the  course  of  his  employment,  have 
anything  to  do  with  dynamite  caps,  nor  was  he  ordinarily  exposed 
to  any  hazard  on  account  of  the  presence  and  use  thereof  by  de- 
fendant upon  the  premises;  but  they  were  used  by  the  defendant. 
That  the  legitimate  use  thereof  was  confined  to  parts  of  the  prem- 
ises remote  from  the  building  in  which  the  accident  occurred  does 
not  necessarily  relieve  the  master  from  the  duty  to  make  compen- 
sation under  the  act  to  a  servant,  injured  by  the  explosion  of  a 
dynamite  cap  in  a  part  of  the  premises  which  ordinarily,  and 
under  the  rules  of  the  master,  is  free  from  danger  on  account 
thereof.  The  commissioner  did  not  find  that  plaintiff  took  the  ex- 
plosive into  the  building  where  the  accident  occurred,  and  cul- 
pability upon  his  part  causing  the  injury  is  not  shown  by  evidence 
of  fellow  workmen  that  some  time  later  they  found  a  dynamite 
cap  in  a  pocket  of  his  overalls,  which  they  took  from  a  locker  in 
which  plaintiff  kept  them."40 

Where  a  miner  was  killed  as  the  result  of  an  explosion  ;md 
the  evidence  was  conflicting  on  the  question  as  to  whether  the  death 
was  due  to  an  accident  or  suicide,  the1  court,  in  holding  that  the 
death  was  due  to  an  accident  arising  out  of  the  employment,  said : 
"Other  facts  and  circumstances  are  mentioned  in  the  testimony, 
most  of  them  unimportant  and  none  or  all  of  them  conclusive  of 
either  theory.  If  death  is  not  the  result  of  suicide,  the  employer 

40.  Rish  v.  Iowa  Portland  Cement  Co..  —  Iowa  — ,  170  N.  W.  532, 
(1919),  3  W.  C.  L.  J.  463,  18  N.  C.  C.  A.  1032. 

809 


§  324  WORKMEN'S  COMPENSATION  LAW 

must  respond.  The  evidence  may  be  too  meager  to  establish  af- 
firmatevely  either  accident  or  suicide,  but  when  violent  death  ?s 
shown,  the  presumption  arises  that  it  was  not  self-inflicted.  'As 
between  accident  and  suicide  the  law  for  logical,  and  sensible 
reasons  supposes  accident,'  until  the  contrary  is  shown.  *  *  * 
The  evidence  is  surely  not  conclusive  of  suicide.  We  conclude 
that  the  determination  of  the  trial  court  that  death  was  accidental 
is  sustained."41 

Where  a  brewery  employee  was  severely  burned,  as  the  result 
of  an  explosion  occurring  in  the  course  of  his  employment,  and 
later  died  of  Miliary  tuberculosis,  and  the  medical  testimony  was 
to  the  effect  that  the  disease  was  due  to  the  accident,  the  court 
held  that  the  evidence  was  sufficient  to  justify  a  finding  that 
death  was  caused  by  an  accident  arising  out  of  and  in  the  course 
of  the  employment.42 

An  employee  of  an  oil  company  engaged  a  man  temporarily  to 
assist  him  in  placing  a  flywheel  on  a  gasoline  engine.  In  doing 
so  an  explosion  occurred,  killing  both  men.  The  case  was  reversed 
on  other  grounds,  but  the  court  said,  with  reference  to  the  con- 
tention that  deceased  was  not  an  employee.  "We  think  there  is 
no  merit  in  the  contention  of  the  insurance  carrier  that  Tillbnrg 
was  not  in  the  employ  of  the  owners  of  the  lease.  Bacon  appears 
to  have  had  authority  to  hire  such  incidental  he'lp  as  might  be 
necessary  in  the  operation  of  the  lease."43 

Where  an  employee  was  killed  by  an  explosion  which  occurred 
on  the  premises  of  his  employer,  while  the  employee  was  off  duty 
and  engaged  in  his  own  personal  duties,  it  was  held  that  the  ac- 
cident did  not  arise  out  of  the  employment.44 

Where  an  employee  in  a  bakery  was  injured  by  an  explosion 
of  natural  gas,  used  for  heating  ovens,  which  explosion  was  due  to 

41.  State  ex  rel.  Oliver  Iron  Mining  Co.  v.  District  Court  of  St.  Louis 
Co.,  138  Minn.  138,  164  N.  W.  582,  15  N.  C.  C.  A.  526. 

42.  Heileman  Brewing  Co.  v.  Schultz,  161  Wis.  46,  152  N.  W.  446,  15 
N.  C.  C.  A.  643. 

43.  Gillburg  v.  McCarthy  &  Townsend,  179  N.  Y.  App.  Div.  593,  166  N 
Y.  S.  878,  15  N.  C.  C.  A.  449. 

44.  Brienen  v.  Wisconsin  Public  Service  Co.,  166  Wis.  24,  163  N.  W. 
182,  15  N.  C.  C.  A.  289. 

810 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    324 

the  negligence  of  the  employer's  foreman,  it  was  held  that  he  sus- 
tained an  injury  arising  out  of  the  employment,  within  the  mean- 
ing of  the  act.  45 

Where  an  employee  was  killed  by  an  explosion  while  carry i MI: 
powder  from  a  storehouse  to  a  place  in  the  mine  where  it  was  to 
be  used,  it  was  held,  in  the  absence  of  a  showing  of  what  caused 
the  explosion,  that  the  accident  occurring  while  deceased  was  per- 
forming his  duties  was  sufficient  to  sustain  a  finding  that  the  acci- 
dent arose  out  of  the  employment.46 

"Employer  and  employee  were  killed  by  the  same  accident, 
which  was  the  explosion  of  an  ammonia  tank.  For  the  prosecutor 
it  is  claimed  that  there  is  nothing  in  the  evidence  to  support  a 
finding  by  trial  court  that  the  accident  arose  out  of  and  in  the  em- 
ployment. The  fact  are  substantially  as  follows:  Botkin  was  in 
the1  wholesale  milk  business;  Mankowitz  was  his  son-in-law,  and 
described  by  the  witnesses  as  his  right-hand  man.  The  evidence 
justified  the1  conclusion  that  he  was  Botkin 's  general  utility  man. 
Botkin  had  a  creamery  at  Whitehouse,  N.  J.,  from  which  he  seems 
to  have  obtaned  most  of  his  milk,  and  he  visited  it  once  a  month  or 
Mdnnowitz  did  for  him.  to  pay  off  the1  farmers,  and  attended  to  the 
disbursements  generally.  Also  Botkin  had  orgainized  a  corporation 
called  the  Interstate  Milk  &  Creamery  Company,  of  which  Man- 
kowitz  was  to  be  manager  and  director;  one  Ellis,  Botin's  book- 
keeper, was  also  to  be  a  director,  and  the  testimony  is  that  when 
this  concern  actually  began  operations,  Botkin  was  to  give1  up  his 
private  business  and  turn  it  all  over  to  the  Interstate ;  Mankowitz 
was  then  to  cease  being  Botkin 's  manager,  and  apparently  the  whole 
business  was  to  undergo  a  transformation  into  the  Interstate  con- 
cern. The  formal  organization  seems  to  have  be<en  competed  by  the 
•  lay  of  the  accident,  but  operations  had  not  begun.  In  fact,  there  was 
to  be  an  informal  meeting  of  the  directors  to  witness  a  test  of  an 
ammonia  tank,  intended  to  be  used  for  refrigerating  purposes. 
Mankowitz  came  to  Botkin  and  said;  'We  have  to  go  to  White- 
house';  Botkin  responded;  'We  must  go  to  the  Interstate  first,' 

45.  Adams  v.  I  ten  Biscuit  Co.,  (Okla.),  162  Pac.  938. 

46.  Pugh  v.  Earl  Dudley,  (1914),  7  B.  VT.  C.  C.  528. 

811 


§  324  WORKMEN'S  COMPENSATION  LAW 

The  matter  was  settled  by  their  going  to  the  Interstate,  and, 
while  they  were  witnessing  the  test,  the  tank  exploded  and  both 
were  killed.  This  is  the  situation  which  petitioner  claimed  con- 
stituted an  accident  arising  out  of  and  in  the  course  of  Manko- 
witz's  employment.  Judge1  Osborne  so  found,  and  this  certiorari 
is  to  test  the  propriety  of  that  finding.  The  case  was  a  close  one, 
but  we  are  inclined  to  think  that  the  finding  can  be  sustained.  It 
is  true  that  Mankowitz  was  there  as  a  director  of  the  Interstate 
Company,  but  in  our  judgment  that  did  not  prevent  his  being 
there  also  as  the  right-hand  man  of  Botkin.  The  latter  was  presi- 
dent and  principal  owner  of  the  Interstate  company,  and  the  testi- 
mony is  entirely  consistent  with  a  finding  that  Botkin  wanted 
Mankowitz  there  to  advise  him,  as  president  and  principal  owner, 
whether  the  money  that  he  (Botkin)  had  put  into  the  company 
should  be  invested  in  this  particular  tank;  in  short,  that  Manko- 
witz was  there  in  a  dual  capacity,  as  manager  of  the  new  comp- 
any, and  also  as  Botkin 's  adviser  and  right-hand  man.  The  in- 
terests of  the  two  were  substantially  identical,  so  that  there1  is  no 
difficulty  about  a  conflict  of  the  interest.  It  was  just  as  much 
Botkin 's  interest  that  there  should  be  a  good  ammonia  tank  as  it, 
was  that  of  the  company.  "We  think  that  in  this  aspect  of  the 
case  the  finding  that  Mankowitz  was  in  the  employment  of  Botkin 
and  doing  his  work  at  the  time  of  the  accident  was  justified,  -md 
this  leads  to  an  affirmance  of  the  judgment  below."47 

Where  an  employee  while  adjusting  the  canopy  top  of  a  gaso- 
line delivery  tank,  fell  under  the  wagon  and  was  injured,  the 
court  said: 

"The  deceased  came  to  has  death  as  found  by  the  Industrial 
Board,  through  an  accident  which  occurred  in  the  course  of  and 
arising  out  of  his  employment.  Plaintiffs  in  error  were  engaged 
in  a  business  that  was  extrahazardous  under  the  act,  and  the  de- 
ceased was  working  for  them  as  a  driver  of  one  of  their  wagons. 
Such  work  was  necessary  in  carrying  on  the  principal  business  of 
the  plaintiff  in  error.  We  think  the  occupation  of  the  deceased 
was  sufficiently  connected  with  the  extrahazardous  business  of  the 

47.    Newman  v.  Mankowitz,  (1919),  108  Atl.  179,  93  N.  J.  L.  473,  5  W. 
C.  L.  J.  296. 
812 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §    325 

plaintiffs  in  error,  ('any  enterprise  in  which  explosive  materials 
are  manufactured,  handled,  or  used  in  dangerous  quantities.' 
[Callaghan's  1916,  St.  Supp.  §  5475  (b)  (6)]),  and  such  business 
being  under  the  act,  his  widow  was  entitled  to  recover  under  its 
provisions."48 

§  325.  Exposure. — The  applicant  was  compelled  to  work  in 
hot  pulp  for  a  considerable  time.  The  next  day  he  was  stiff  and 
sore,  and  later  developed  acute  nephritis.  The  court  held  that  the 
disability  was  due  to  an  accident,  and  that  the  accident  arose  out 
of  the  employment/9 

Claimant  was  compelled  to  jump  into  the  river  in  order  to  save 
himself,  when  one  of  the  timbers  of  the  crane  upon  which  he  was 
working  broke.  He  waded  to  shore  and  as  a  result  of  the  exposure 
developed  pleurisy  and  pulmonary  tuberculosis,  causing  disability. 
The  court  held  that  the  disability  from  exposure  was  due  to  the 
accident  arising  out  of  the  employment.50 

Where  applicant  was  exposed  to  cold  and  dampness  for  8  hours 
while  he  was  bailing  out  a  mine,  and  developed  subacute  rheuma- 
tism as  a  direct  result  of  the  exposure,  it  was  held  that  the  disabili 
ty  was  due  to  an  accident  arising  out  of  the  employment.51 

Where  a  brewery  fireman  was  forced  to  walk  some  distance 
through  a  heavy  snowfall  to  work,  which  exhausted  and  wet  him, 
and  he  worked  an  extra  long  shift  thereafter,  exposed  to  changes  of 
temperature,  subsequent  to  which  he  contracted  pneumonia,  from 
which  he  died,  it  was  held  that  the  death  was  not  due  to  an  acci- 
dental injury  arising  out  of  the  employment.  The  court  said : 
' '  We  are  not  at  liberty  to  construe  the  act  so  as  to  include  diseases 

48.  Gibson  v.  Indus.  Bd.,  276  111.  73.  114  N.  E.  515,  16  N.  C.  C.  A.  636. 
Note:    For  further  cases  on  explosions  see  "Act  Not  Constituting  Wilful 

Misconduct,"  §  283  note  26,  16,  97,  23,  12;  See  "Chauffeur"  §  314  note  47 
See  "Acts  For  Personal  Convenience  or  Pleasure"  §  288  note  14;  Miscel- 
laneous Accidents  In  War  Zone"  Note  47,  "Lunch  Hour  Injuries,"  notes 
80  and  84. 

49.  United   Paperboard  Co.  v.   Lewis,  64  Ind.   App.  — ,  117   N.  E.  276, 
15  N.  C.  C.  A.  686. 

50.  Rist  v.  Larkin  *  gangster,  171  N.  Y.  App.  Diy.  71,  156  N.  Y.  8.  876, 
15  N.  C.  C.  A.  688. 

51.  Glasgow  Coal  Co.,  Ltd.  v.  Welsh,  (1916),  W.  C.  *  Ins.  Rep.  79,  15 
N.  C.  C.  A.  690. 

813 


§  326  WORKMEN'S  COMPENSATION  LAW 

which  are  caused  by  accident  without  the  intervention  of  bodily 
injury."52 

Colds  resulting  from  exposure  are  not  accidental  injuries  arising 
out  of  the  employment,  unless  the  particular  nature  of  the  employ- 
ment subjects  the  servant  to  a  greater  hazard  of  this  nature,  than 
he  would  be  subjected  to  otherwise.53 

Malarial  fever  resulting  from  exposure  to  hot  sun  and  heat  of 
a  forest  fire,  together  with  overexertion  is  under  the  Federal  Act 
a  compensable  injury  arising  out  of  the  employment.54 

Pneumonia  alleged  to  be  caused  by  exposure  and  wet  feet  was 
held  not  compensable  under  the  Federal  Act,  because  it  was  found 
that  the  weight  of  medical  authority  is  to  the  effect  that  these 
conditions  will  not  directly  cause  pneumonia.55 

§  326.  Eye  Injuries. — Plaintiff  was  injured  in  an  accident  on 
a  logging  railroad.  Shortly  thereafter  the  sight  of  his  left  eye, 
which  previously  had  been  good,  began  to  fail  and  became  blind. 
There  was  no  evidence  that  the  atrophy  of  the  optic  nerve  was 
due  to  lues  or  any  germ  carrying  disease.  "These  physical  facts, 
coupled  with  the  opinion  of  reputable  oculists  that  the  condition 
may  have  resulted  from  the  accident  is  enough  to  sustain  the 
judgment  of  the  court  below,"  awarding  compensation.56 

A  miner,  after  finishing  his  work  for  the  day,  changed  his  clothes 
and  started  to  leave  the  mine,  when  he  struck  his  face  against  a 
projecting  piece  of  slate  and  destroyed  one  of  his  eyes.  The  court 
held  that  until  the  miner  was. safely  away  from  the  mine  he  was 

52.  Linnane  v.  Aetna  Brwy.  Co.,  91  Conn.  158,  99  Atl.  507,  15  N.  C.  C. 
A.  691. 

53.  In  re  Geo.  L.  Snider,  3rd  A.  R.  U.  S.  C.  C.  118;  In  re  F.  W.  Wilson, 
2nd  A.  R.  U.  S.  C.  C.  154. 

Note:    See  Sunstroke,  Heatstroke,  Freezing. 

54.  In  re  Archie  A.  Arbuckle,  3rd  A.  R.  U.  S.  C.  C.  127;    In  re  Angus 
S.  Nicholson,  2nd  A.  R.  U.  S.  C.  C.  67. 

55.  In   re  Wm.   J.   Lehr,   2nd   A.  R.   U.  S.  C.    C.   183;    In  re  Edward 
Thomas  Obrien,  2nd  A.  R.  U.  S.  C.  C.  183. 

56.  Nelson  v.   Industrial  Insurance  Department,   104   Wash.    204,   176 
Pac.  15,  3  W.  C.   L.   J.   199,  17  N.   C.   C.  A.   1057;    Pawling  &  Harnis- 
chfeger  v.  Mildenberger,  170  Wis.  146,  (1919),  174  N.  W.  455,  5  W.  C.  £,. 
J.   121. 

814 


ACCIDENT   ARISING   OUT   OP   COURSE  OP   EMPLOYMENT.      §    326 

not  without  the  protection  of  the  act,  and  therefore  the  accident 
arose  out  of  and  in  the  course  of  the  employment. " 

Where  the  claimant  suffered  an  injury  to  his  eye,  and  the  de- 
fendant sought  to  defeat  a  recovery  by  showing  that  after  claimant 
had  visited  a  physician  he  took  it  upon  himself  to  treat  his  ey« 
liy  the  use  of  a  potato  poultice,  which,  defendant  alleged,  destroyed 
ihe  siirht  of  the  eye,  the  court,  in  affirming  an  award,  said  that, 
in  view  of  the  fact  that  claimant  was  a  man  of  limited  education, 
no  more  knowledge  could  be  expected  of  him  than  he  actually 
possessed,  and  in  the  present  case  his  conduct  was  not  so  unrea- 
sonable as  to  defeat  a  recovery.88 

The  claimant,  a  night  watchman,  suffered  the  loss  of  his  eye 
as  the  result  of  some  foreign  substance  blowing  into  it  as  he  was 
closing  a  window  during  a  storm.  The  commission  found  that  the 
injury  was  due  to  an  accident  arising  out  of  the  employment,  and 
on  appeal  the  court  held  that,  as  there  was  no  evidence  that  the 
business  was  in  operation,  it  must  be  assumed  that  the  business 
was  in  operation,  and  in  such  case  the  claimant  was  exposed  to 
the  h.i/ards  of  the  business,  and  that  it  was  immaterial  that  the 
particular  act  that  he  was  doing  was  not  an  act  peculiar  to  the 
business  which  was  being  conducted.59 

AY  here  a  coal  miner's  eye  was  injured  by  a  small  particle  of 
rock  flying  from  a  sledge,  but  the  evidence  was  that  his  vision  was 
not  affected  by  the  accident,  compensation  will  not  be  allowed.60 

AY  here  an  employee  sustained  a  burn,  followed  by  impaired 
vision,  it  was  held  that  the  evidence  justified  a  finding  that  the 
impaired  vision  was  due  to  the  burn.  There  was  evidence  that 
prior  to  the  burn  claimant's  vision  was  good,  and  opposed  to  this 

57.  Sedlock  v.  Carr  Coal  Mining  &  Mfg.  Co.,  98  Kan.  680.  L.  R.  A.  1917B, 
372,  159  Pac.  9,  15  N.  C.  C.  A.  237. 

58.  Riley  v.  Mason  Motor  Co.,  199  Mich.  233,  165  N.  W.  745,  15  N.  C. 
C.  A.  78. 

69.  Kobyra  v.  Adams,  176  N.  Y.  App.  DIv.  43,  162  N.  Y.  S.  269,  15  N. 
C.  C.  A.  217. 

60.  Perry  County  Coal  Corp.  v.  Indus.  Conim.,  —  III.  — ,  128  N.  E. 
333,  6  W.  C.  L.  J.  653. 


§  327  WORKMEN'S  COMPENSATION  LAW 

was  expert  testimony  that  they  never  heard  of  a  case  of  this  kind 
which  would  cause  impairment  of  vision.61 

§  327.  Palls  From  Vertigo  or  Other  Like  Causes. — An  em- 
ployee, whose  business  was  to  see  that  yarn  was  wound  around  a 
revolving  cylinder,  was  killed  when  he  fell  on  a  machine,  so  that 
his  neck  was  torn  open  and  the  carotid  artery  was  cut.  Medical 
testimony  was  to  the  effect  that  the  fall  was  caused  by  a  pre-exist- 
ing diseased  condition.  The  court  held  that,  even  though  the  causg 
of  the  fall  was  the  diseased  condition  of  decedent,  it  was  a  remote 
cause  and  the  fall  itself  was  the  dominant  and  proximate  cause 
which  placed  the  body  of  the  employee  in  such  relation  to  the  re- 
volving parts  of  the  machine  as  to  result  in  an  injury  causing? 
death.  "Indisputably  the  injury  occurred  during  the  course  of 
the  employment,  and  the  fall  into  the  machine  was  from  the  front 
of  the  machine  where  the  employee  was  standing  in  the  active  per- 
formance of  his  duty.  The  real  question  is  not  so  much  the  cause 
of  the  fall  or  whether  the  fall  as  such  arose  out  of  the  employment, 
but  whether  the  risk  and  harm  of  a  fall  into  or  upon  machinery 
then  in  use  by  an  employee  are  incidents  of  that  business  and 
hazards  to  which  the  workman  would  have  been  exposed  apart 
from  that  business.  McNicol's  Case,  215  Mass.  497,  499,  102  N. 
E.  697,  L.  R.  A.  1916A.  306,  4  N.  C.  C.  A.  522 :  Wicks  v.  Dowell, 
(1905),  2  K.  B.  225.  We  think  the  injury  arose  out  of  and  in  the 
course  of  the  employment.  Brightman's  Case,  220  Mass.  17,  107 
N.  E.  527,  L.  R.  A.  1916A,  321;  Mooradjian's  Case,  229  Mass. 
521,  118  N.  E.  951;  Hallett's  Case,  230  Mass.  326,  328,  119  N. 
E.  673.  "62 

Where  a  water  boy,  whose  duties  required  him  to  distribute 
drinking  water  to  the  different  working  men  on  a  building,  fell 
down  an  elevator  shaft,  and  no  one  saw  or  knew  anything  about 
the  circumstances  of  the  fall,  the  commission  found  that  the  fall 
was  due  to  an  accident  arising  out  of  the  employment,  and  where 

61.  Raina  v.  Standard  Gaslight  Co.  of  N.  Y.,  183  N.  Y.  S.  264,  (1920), 
6  W.  C.  L.  J.  490. 

62.  Dow's  Case,  231  Mass.  348,  121  N.  B.  19,  3  W.  C.  L.  J.  144;    In  re 
Stanley  Lonowiski,  3rd  A.  R.  U.  S.  C.  C.  122. 

816 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §   327 

there  is  evidence  to  support  such  finding  it  will  not  be  disturbed  on 
appeal.88 

Where  an  employee  fell  in  the  course  of  the  employment  and 
died  later,  the  evidence  of  medical  experts  after  performing  an 
autopsy  was  to  the  effect  that  the  fall  which  caused  death  was  due 
to  a  blood  clot  on  the  brain  caused  by  a  previous  injury,  and  there- 
fore the  death  was  not  due  to  an  accident  arising  out  of  and  in 
the  course  of  the  employment.84 

Applicant,  a  man  of  71  years  of  age,  fell,  striking  his  head, 
causing  a  scalp  wound.  Prior  to  the  accident  he  had  slight  at- 
tacks of  dizziness  and  weak  spells,  but  they  never  caused  him  to 
fall.  There  was  testimony  to  the  effect  that  applicant  was  never 
seen  to  fall  prior  to  the  accident,  and  that  there  were  nails  pro- 
truding from  the  floor  where  applicant  worked  and  on  two  occa- 
sions he  had  tripped  on  the  nails,  and  that  there  was  no  way  of 
accounting  for  the  fall  other  than  tripping  on  the  nails.  Affirm- 
ing an  award,  the  court  said:  "While  plaintiff  testifies  that  at 
times  he  had  been  dizzy  and  weak,  he  also  testifies  that  it  was 
nothing  to  speak  of,  but  slight,  and  never  sufficient  to  cause  him 
to  lose  his  balance  and  fall.  His  fellow  workmen  and  superiors 
in  the  plant  who  saw  him  daily  never  noticed  any  appearance  of 
dizziness  or  fainting,  and  never  saw  him  fall  before.  The  fact 
that  he  did  not  recall  just  how  the  accident  happened  is  in  no  way 
extraordinary,  when  we  contemplate  that  in  the  fall  he  struck  his 
head  with  sufficient  force  to  inflict  a  gash  in  his  scalp.  He  was 
over  70  years  of  age,  not  as  nimble  as  in  his  younger  years,  and 
had  had  trouble  with  his  limbs  and  feet  a  short  time  before.  We 
are  not  persuaded  that  we  should  say,  as  matter  of  law,  that  the 
cause  of  the  accident  under  the  evidence  in  the  case  is  so  con- 
jectural as  to  require  us  to  set  aside  the  finding  and  award  of  the 
board."85 

63.  Gabriel  v.  A.  J.  Smith  Const.  Co.,  206  Mich.  470,  (1919),  173  N.  W. 
195,  4  W.  C.  L.  J.  604. 

64.  Hansen  v.  Turner  Const.  Co.,  224  N.  Y.  331,  120  N.  E.  693.  17  N. 
C.  C.  A.  786,  3  W.  C.  L.  J.  168;    Cox  v.  Kansas  City  Ref.  Co.,  —  Kan.  — , 
(1921),  195  Pac.  863. 

65.  Wilson  v.  Phoenix  Furniture  Co.,  201  Mich.  631,  167  N.  W.  839,  2 
W.  C.  L.  J.  327. 

817 
W.  C.— 62 


§•  '327  WORKMEN'S  COMPENSATION  LAW 

''The  claimant,  a  brickmaker,  was  required  to  perform  his  duties 
while  standing  on  a  pile  of  brick  about  15  feet  above  the  ground. 
He  was  seized  'with  an  attack  of  vertigo,  or  with  some  similar 
disorder,  which  caused  him  to  fall  to  the  frozen  ground.'  'It  is. 
urged  that  his  injury  was  the  result  of  the  vertigo,  and  not  of  an 
accident;  but  the  findings  and  proceedings  indicate  that  he  was 
in  good  health  at  the  time,  and  no  reason  is  given  for  the  fall  ex- 
cept the  dizziness.  The  natural  inference  is  that  the  dizziness,  the 
fall,  and  the  injury  resulted  from  the  elevated  position  in  which 
he  was  standing  while  performing  his  work.'  The  injury  was 
held  to  be  due  to  an  accident  arising  out  of  the  employment. ' ' 66 

An  assistant  foreman,  in  the  employ  of  the  street  department 
of  a  gas  company,  while  pursuing  the  duties  of  his  employment, 
suddenly  fell  to  the  street  and  later  died  in  a  hospital.  An  autopsy 
revealed  that  in  all  probability  the  fall  had  been  due  to  an  attack 
of  cardiac  syncope,  to  which  a  previous  disposition  of  the  heart 
disposed  it.  It  was  held  that  the  fall  and  subsequent  death  was 
not  due  to  an  accidental  injury  arising  out  of  the  employment.67 

Where  a  driver,  by  reason  of  a  fainting  fit,  fell  from  a  wagon 
and  fractured  his  skull,  it  was  held  that  the  injury  arose  out  of 
the  employment,  because  the  employee  was  exposed  to  a  substantial 
and  increased  risk  owing  to  his  occupation.68 

Where  an  employee  became  faint  from  vertigo  and  illness,  and 
fell  on  a  table,  injuring  herself,  it  was  held  that,  in  the  absence  of 
a  showing  that  the  faintness  was  due  to  a  condition  of  the  employ- 
ment, and  not  due  to  her  own  physical  condition,  it  could  not  be 
said  that  the  accident  arose  out  of  the  employment.69 

66.  Santa  Corce  v.  Sag  Harbor  Brick  Works,  169  N.  Y.  Supp.  695,  182 
N.  Y.  App.  Div.442,    1  W.  C.  L.  J.  1132,  17  N.  C.  C.  A.  787;    Board  of 
Comm'rs  of  Greene  Co.  v.  Shertzer, —  Ind.  App.  — ,  (1920),  127  N.  E.  843, 
6  W.  C.  L.  J.  310;    Miller  v.  Biel,  127  N.  E.  567,  6  W.  C.  L.  J.  315. 

67.  Collins  v.  Brooklyn  Union  Gas  Co.,  171  App.  Div.  381,  156  N.  Y.  S. 
957. 

68.  Driscoll  v.  Employer's  Liab.  Assur.  Corp.,  1  Mass.  Ind.  Ace-.  Bd. 
125;    Hanson  v.  Commercial  Sash  Door  Co.,  1  Bull.  111.  Ind.  Bd.  30;  Burke 
v.  Mayer,  (1916),  3  Cal.  I  A.  C.  310;    Crase  v.  North  Star  Mines  Co.,  1  Cal. 
I.  A.  C.  (part  1)  68. 

69.  Erickson  v.  Empire  Laundry  Co.,  1  Cal.  Ind.  Ace.  Comm.,  part  2, 
612;  In  re  Frank  Kasobuski,  3rd   A.  R.  U.  S.  C.  C.  169;    Reeves  v.  J.  A. 
Dady  Corp.,  —  Conn.  — ,  113  Atl.  162  (1921). 

818 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPIX)YMENT.        §    328 

Where  a  salesman,  crossing  the  ferry  from  San  Francisco  to 
Oakland.  l>ecame  nauseated  and  dizzy,  and  sustained  a  fall  due  to 
such  dizziness,  resulting  in  concussion  of  the  brain,  it  was  held 
that,  in  the  absence  of  a  showing  that  the  bay  was  rough  or  th>- 
\\vather  bad,  applicant  had  failed  to  i-stahlish  a  case  of  accident 
arising  out  of  the  employment.70 

A  buyer  and  department  store  manager  became  faint,  fell,  and 
sustained  injuries,  while  in  a  bathroom  of  a  hotel  during  a  business 
trip.  It  was  held  that  the  accident  did  not  arise  out  of  the  em- 
ployment.71 

§  328.  Falling  Objects. — An  apartment  building  janitress, 
who  received  free  use  of  an  apartment  and  a  small  wage,  was  in- 
jured by  falling  plaster  as  she  was  about  to  sit  down  to  breakfast 
in  her  own  apartment.  In  holding  that  the  accident  did  not  arise 
out  of  the  employment,the  court  said:  "The  case  is  no  different 
than  it  would  be  if  the  claimant,  although  janitress  of  the  building 
in  question,  had  occupied  an  apartment  in  another  building  and 
the  accident  had  there  occurred.  In  no  proper  sense  can  it  be  said 
that  she  was  janitress  of  her  own  apartment,  merely  because  it 
happened  to  be  a  part  of  the  building  of  which  she  was  the  jani- 
tnss.  In  her  own  apartment  she  presided  over  her  household 
affairs  and  was  serving,  not  her  employers,  but  herself  and  her 
family.  If  this  award  can  be  sustained,  so  also  it  should  be  sustain- 
ed if  the  plaster  had  fallen  on  her  at  night  while  she  was  sleeping, 
or  while  doing  any  ordinary  housework  for  the  requirements  or 
convenience  of  her  family.  At  the  timo  of  the  accident  she  was 
doing  nothing  for  her  employers,  nor  anything  incidental  thereto. 
lit  r  duly  to  them  did  not  require  her  presence  in  her  apartment. 
What  she  was  doing  was  personal  to  herself.  It  was  entirely  dis- 
associated witli  the  work  of  her  employers."  T1 

70.  Van  Winkle  v.  O.  S.  Johnson  *  Co.,  2  Cal.  I.  A.  C.  212. 

71.  Jacobs  v.  Davis  Schonwasser  Co.,  2  Cal.  I.  A.  C.  938. 
Note:  See  §  188  ante. 

72.  In  re  Lauterbach.   (1919),  189  App.  Div.  303,  178  N.  Y.  S.  480,  5 
W.  C.  L.  J.  100. 

819 


§  328  WORKMEN'S  COMPENSATION  LAW 

Where  an  employee  was  carrying  a  plank  to  a  saw  and  dropped 
it  upon  his  toe,  thereby  injuring  the  toe,  the  court  held  that  the 
evidence  was  sufficient  to  justify  a  finding  that  the  injury  arose 
out  of  the  employment.73 

A  restaurant  dishwasher  was  injured  when  the  ceiling  fell  upon 
her.  The  cause  of  the  fall  was  the  overloading  of  the  floor  above 
over  which  the  master  had  no  control.  It  was  held  that  the  injury 
arose  out  of  the  employment.74 

Where  a  teamster,  while  driving  his  employer's  team  on  a  street, 
was  killed  when  a  beam  fell  from  a  building  under  construction, 
it  was  held  that  the  injury  arose  out  of  the  employment.75 

Where  a  domestic  servant  lost  the  sight  of  an  eye  as  the  result 
of  plaster  falling  into  it  when  she  was  arising  in  the  morning,  it 
was  held  that  the  accident  arose  out  of  the  employment.76 

Where  a  wagon  bed  suspended  by  ropes  fell  upon  an  employee 
while  asleep  and  killed  him,  the  Q0urt  in  awarding  compensation 
to  his  dependents  said:  "  Bollman 's  employment  was  not  for  cer- 
tain hours  of  each  day,  with  no  obligation  to  his  employer  for  the 
remaining  hours  of  the  24,  as  is  usual  in  employment  contracts. 
By  the  terms  of  his  agreement,  Bollman  was  required  to  leave  l>is 
own  domicile,  and  travel  from  farm  to  farm  with  the  threshing 
outfit,  to  stay  of  nights  on  the  premises  where  the  machine  happen- 
ed to  be,  and  as  watchman  guard  and  protect  it  from  fire  and  tres- 
passers. Since  he  was  not  only  to  act  as  engineer  in  the  oper- 
ation of  the  machine,  but  was  to  remain  overnight  and  act  as 
watchman,  it  must  be  presumed  that  it  was  not  the  intention  of 
the  parties  that  Bollman  was  to  remain  awake  through  e'ach  night, 
but  rather  that  he  should  sleep  on  the  premises  where  the  machine 
was  left,  and  be  ready  for  such  emergency  as  might  arise.  It  can- 
not be  said  that  Bollman  could  not,  and  did  not,  render  service  to 
his  employer  while  asleep,  though  it  is  not  stated  that  he  was 
asleep  at  the  time  of  the  accident,  but  that  he  "had  retired  in  the 

73.  Mallory's  Case,  231  Mass.  225,  120  N.  E.  591,  17  N.  C.  C.  A.  941. 

74.  Kimbol  v.  Indus.  Acci.  Comm.,  173  Cal.  351,  160  Pac.  150,  L.  R.  A. 
1917B,  595,  Ann.  Gas.  1917E,  312. 

75.  Mahowald  v.  Thompson  Starrett  Co.,  134  Minn.  113,  158  N.  W.  913 

76.  Alderidge  v.  Merry,  (1912),  Ir.  Ct.  of  Appeal,  6  B.  W.  C.  C.  450. 
820 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    329 

driveway  of  the  barn  for  the  night."  Under  the  facta  stated;  be 
had,  as  had  long  been  his  custom,  placed  himself  not  far  from 
the  property,  so  that  the  noise  made  by  trespassers  might  the  more 
easily  awaken  him  should  he  be  asleep,  and  so  that  he  could  the 
more  quickly  reach  the  property  should  help  be  needed.  The  ac- 
cident which  caused  Bollman's  death  was  due  to  a  hazard  to  which 
he  would  not  have  been  exposed  apart  from  his  employment.  The 
accident  was  the  result  of  a  risk  which  was  reasonably  incidental 
to  the  employment.  We  therefore  hold  that  the  death  of  Bollnian 
was  by  accident  arising  out  of  his  employment  by  Lewellen,  aee 
Chitty  v.  Nelson  L.  R.  A.  1916A,  58,  note;  Moyse  v.  Northern 
Pacific  R.  Co.,  41  Mont.  272,  108  Pac.  1062 ;  Haller  v.  City  of  Lan- 
sing, 195  Mich.  753,  162  N.  W.  335,  L.  R.  A.  1917B  324."" 

§  329.  Frost  Bites  and  Freezing. — A  woodsman,  misunderstood 
his  orders  and  worked  at  the  wrong  place,  and  upon  discovering 
his  mistake  went  to  the  proper  place  and  worked  so  much  harder 
than  usual  in  preparing  for  the1  next  day's  drive  that  his  feet  per- 
spired and  were  consequently  frozen.  On  appeal,  the  court,  in 
holding  that  the  injury  was  due  to  an  accident  arising  out  of  and 
in  the  course  of  the  employment,  said:  "Injury  by  freezing  is 
certainly  not  peculiar  to  the  industry  in  which  the  defendant 
Beaulieu  was  engaged.  Did  the  nature  of  Beaulieu 's  employment 
expose  him  to  a  hazard  from  freezing  which  was  substantially  in- 
creased by  reason  of  the  services  which  he  was  required  to  per- 
form. *  *  *  On  the  day  in  question  by  reason  of  the  mistake, 
the  defendant  Beaulieu  worked  harder  than  he  ordinarily  did,  es 
a  result  of  which  his  feet  became  wet  from  perspiration,  a  cir- 
cumstance which  made  them  much  more  susceptible  to  cold,  and 
as  a  consequence  thereof  his  feet  were  froze.  It  seems  clear  that 
the  hazard  to  which  the  defendant  Beaulieu  was  exposed  was  3ne 
which  was  incident  to  and  can  be  fairly  traced  to  his  employment 
as  a  contributing  cause,  and  that  he  would  not  have  been  equal'y 
exposed  to  such  a  hazard  apart  from  his  employment.  If  the  de- 
fendant Beaulieu  while  engaged  in  his  work  had  wet  his  feet  by 
stepping  into  an  open  spring  and  the  freezing  had  resulted  there- 

77.  In  re  Bollman,—  Ind.  App.  — ,  (1920),  126  N.  E.  639.  5  W.  C.  L. 
J.  881. 

821 


§  329  WORKMEN'S  COMPENSATION  LAW 

from,  it  could  scarely  be  claime'd  that  the  injury  was  not  proximately 
caused  by  accident.  In  this  case,  the  condition  of  his  feet  was  due 
to  extra  exertion  caused  by  reason  of  a  misunderstanding  as  to  or- 
ders. Because  there  would  be  no  logs  for  hauling  in  the  morning, 
he  was  required  to  put  forth  an  unusual  and  extra  effort,  which 
made  him  more  susceptible  to  cold  than  he  otherwise  would  have 
been.  It  is  clear  that  the  exposure  of  the  defendant  Beaulieu  to 
injury  by  freezing  was  substantially  increased  by  reason  of  the 
nature  of  the  services  which  he  was  obliged  to  render.  "We  think 
it  must  be  held  that  the  injury  for  which  compensation  was  award- 
ed was  proximately  caused  by  accident  within  the  meaning  of  the 
act."78 

Applicant,  an  employee  of  a  railroad  construction  company, 
worked  in  the  open  air  from  7  a:  m.  until  5  or  6  p.  m.  when  the 
temperature  was  about  60  degrees  below  .zero.  He  was  cutting  a 
roadway  and  wore  two  pair  of  woolen  socks,  felt  boots  and  rub- 
bers. The  felt  boots  were  in  bad  condition.  "When  he  started  to 
work  in  the  morning  his  feet  were  in  good  condition  and  in  the 
evening  at  the  close  of  work  they  were  frozen.  In  affirming 
judgement,  the  court  said:  "It  seems  to  me1  to  be  a  forgetting  of 
the  words  of  the  statute  '  arising  out  of  his  employment '  to  say  that 
all  persons  engaged  in  similar  work  were  subject  to  the  same  risk. 
Admit  that  they  were  *  *  *  To  say  that  applicant  was  not  ex- 
pose'd  to  any  more  special  risk  than  ordinary  persons  engaged  in 
out-door  work  simply  means  that  the  applicant  might  be  one  of 
a  large  class  of  persons  exposed  to  a  risk  arising  out  of  their  em- 
ployment. You  might  as  well  say  that  a  man  working  in  a  factory 
who  was  struck  by  a  falling  board  or  bar  should  be  disentitled  to 
compensation  because  all  persons  working  in  factories  are  liaole 
to  have  that  happen  to  them.  Simply  because  you  can  discover 
or  describe  a  class  of  workmen  who  are  generally  exposed  to  such 
a  risk  and  find  the  applicant  to  be  one  of  that  class  seems  to  me 
.  to  be  no  valid  reason  for  refusing  him  compensation  or  for  say- 
ing that  his  injury  did  not  arise  out  of  his  employment.  People 
who  are  not  employed  at  all  do  not  kick  around  in  the  snow  when 

78.     Ellingson   Lbr.   Co.   v.   Indus.   Comm.   of   Wis.,    168   Wis.   227,    169 
N.  W.  568,  3  W.  C.  L.  J.  215,  11   N.  C.  C.  A.   1003. 

822 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    329 

it  is  60  degrees  below  zero.  People  who  are  employed  as  waiters 
in  a  comfortable  hotel  are  not  exposed  to  frostbites.  *  *  *  It 
was  because  he  was  so  employed  that  the  applicant  was  exposed  to 
the  risk,  and  I  see  no  reason  for  excluding  his  case  from  the  words 
of  the  statute  because  you  can  discover  other  people  whose  em- 
ployment similarly  exposed  them.  Upon  that  principle  no  man 
could  recover  if  you  could  show  that  a  group  of  other  people  were 
exposed  in  the  course  of  their  employment  to  similar  risks."79 

"The  court  of  cassation  has  held  several  times  in  France  that 
as  a  ru'e  the  Statute  of  April  9th,  1898,  does  not  cover  accidents 
due  to  the  forces  of  nature  even  though  they  occur  in  the  course 
of  the  employment.  Nevertheless  if  the  employment  has  contrib- 
uted to  the  bringing  into  play  of  these  forces,  or  has  provoked 
or  aggravated  its  effects,  then  the  accident  falls  .within  the  statute, 
according  to  the  court  of  cassation.  Thus,  as  a  general  prineip'e. 
the  employer  is  not  responsible  for  damages  caused  to  his  work 
men  by  lightning,  storms  sunstroke  freezing,  earthquakes,  floods, 
etc.  These  are  considered  as  'force  majeure,'  which  human  vig- 
ilance and  industry  can  neither  foresee  nor  prevent.  The  victim 
must  bear  alone  such  burden,  inasmuch  as  human  industry  has 
nothing  to  do  with  it  and  inasmuch  as  the  employee  is  no  more  sub- 
ject thereto  than  an  other  person.  This  is,  says  Loubat  (Lo 
Risque  Professional  No.  504),  what  Mr.  Lion  Say  called  'the  great 
professional  risk  of  humanity.'  Every  human  being  is  liable  to 
suffer  from  events  in  which  he  has  no  share  of  responsibility.  There 
is  here  between  the  accident  and  the  employment  no  relationship 
of  cause  and  effect.  Hence  it  cannot  be  said  of  such  an  accident 
that  it  arises  out  of  or  in  the  course  of  employment.  But  where 
the  work,  or  where  the  conditions  under  which  it  is  carried  on, 
expose  the  employees  to  the  happening  of  a  force  majeure  event  or 
contribute  to  bring  it  into  play  or  to  aggravate  its  effects,  then  \ve 
are  no  longer  face  to  face  with  the  sole  forces  of  nature.  This  is 
no  longer  a  risk  to  which  everybody  is  exposed.  This  is  a  danuer 
which  threatens  more  particularly  the  employees  who  work  under 
special  conditions.  Hence  the  occurring  of  a  force  majeure  event 

79.     Nikkiczuk  v.  McArthur,  9  Alta.  503,  28  Dom.  L.  279,  15  N.  C.  C.  A. 
682. 

823 


§•  331  WORKMEN'S  COMPENSATION  LAW 

under  such  circumstances  is  an  accident  arising  out  of  the  employ- 
ment."80 

A  seaman  at  work  on  his  ship  sustained  a  frostbite.  The  judge 
found  that  the  workman  had  not  proved  that  the  frostbite  was  due 
to  any  particular  circumstance  in  connection  with  his  employment 
or  that  he  had  been  exposed  to  any  unusual  risk.  It  was  held  that 
the  accident  did  not  arise  out  of  the  employment. 81 

§  330.  Gangerene  Resulting  From  Injury. — Where  a  gate- 
keeper, on  a  road  under  construction,  had  his  foot  crushed  while 
opening  a  gate  to  allow  a  truck  to  pass,  and  the  foot  became  gan- 
grenous, resulting  later  in  the  death  of  the  gatekeeper,  the  court 
held  that  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment. 82 

§  331.  Glanders. — Where  a  stableman  contracted  glanders  as 
the  result  of  caring  for  a  horse  infected  with  that  disease,  the  court, 
in  denying  that  the  death  was  due  to  an  accident  arising  out  ot 
the  employment,  said:  "Glanders  cannot  be  differentiated  from 
other  diseases  by  the  fact  that  ordinarily  it  is  a  disease  which 
affects  a  horse  rather  than  a  human  being,  for  it  cannot  matter 
whence  the  bacteria  have  proceeded  which  set  up  disease  within 
the  human  body.  Anthrax  is  a  disease  which  commonly  affects 
sheep  and  cattle,  and  is  communicable  from  them  to  man,  yet  of 
the  effects  of  anthrax  it  was  said  in  Bacon  v.  U.  S.  M.  A.  Ass'n, 
supra :  '  The  difference  between  the  cause  of  this  condition  and  the 
causes  of  typhoid  fever,  tuberculosis,  smallpox,  scarlet  fever,  and 
such  like  diseases,  is  that  this  particular  condition  is  caused  by 
different  bacilli  from  the  others  and  they  come  in  contact  with 

80.  The  Canada  Cement  Co.  v.  Pazuk,  22  Que.  K.  B.  432,  12  D.  L.  R. 
303,  7  N.C.  C.  A.  982;  Warner  v.  Couchman,  L.  R.,  (1911),  1  K.  B.  351,  1 
N.  C.  C.  A.  51.    See  Savage  v.  City  of  Pontiac  —  Mich  —  183  N.  W.  798. 

81.  Karemaker   v.  S.  S.  "Corsican"   (owners  of)   4    B.  W.    C.  C.  295, 
(1911),  6  N.    C.  C.  A.  708;     Dorrance  v.    New    England  Pin  Co.,    Conn. 
Super.  Ct.,  1  Nat.  Comp.  Journ.,  (1914),  23,  6  N.  C.  C.  A.  709. 

Note:   See  §   192  ante. 

82.  Doherty  v.  Grosse  Isle  Tp.,  205  Mich.  592,  172  N.  W.  596,    (1919), 
18  N.  C.  C.  A.  1030,  4  W.  C.  L.  J.  222. 

Note:   See  §  194  ante. 
824 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    332 

the  skin  or  enter  into  its  pores,  while  in  the  other  cases  they  are- 
generally  breathed  in.'  Except  that  the  bacilli  differ,  glanders 
does  not  differ  from  the  diseases  named  in  the  quotation.  We 
think  that  for  legal  purposes  glanders  is  a  disease  which,  when 
contracted  without  previous  accidental  injury  occurring  in  the- 
course  of  employment,  cannot  be  classed  under  the  Workmen's 
Compensation  Law  of  this  state  as  an  accidental  injury  arising 
out  of  and  in  the  course  of  employment.  We  therefore  conclude 
that  the  question  should  be  answered  in  the  negative,  the  award 
reversed,  and  the  claim  dismissed. " 83 

§  332.  Heart  Disease. — An  employee,  engaged  in  bailing  scrap 
copper,  was  found  dead  near  the  baling  press,  with  a  completed 
bale  of  copper  beside  him,  and  there  was  no  evidence  of  accident, 
but  it  was  claimed  that  the  heavy  work  deceased  was  doing  hasten- 
ed his  death  by  heart  and  kidney  disease.  In  holding  that  the 
death  was  not  due  to  an  accident  arising  out  of  the  employment, 
the  court  said:  "In  this  case  there  was  no  evidence  tending  to 
prove  any  accident  or  accidental  injury  to  the  deceased.  There 
was  no  mark  upon  his  person,  and  nothing  from  which  it  could 
be  inferred  that  an  accident  had  occurred,  and  it  is  not  claimed 
that  there  was  any  accident,  but  only  that  the  heavy  work  which 
he  was  doing  in  the  ordinary  course  of  his  employment  caused  or 
hastened  his  death."  84 

A  laborer  slipped  and  fell  against  the  lever  of  a  machine  he 
was  operating,  and  received  a  blow  over  the  heart,  and  in  a  few 
days  died.  A  physician  testified  that  a  blow  over  the  heart  would 
cause  acute  disease,  and  in  the  case  of  deceased  it  brought  on  a 
condition  known  as  pericarditis.  The  court  held  that,  in  considera- 
tion of  all  the  evidence,  there  was  a  sufficient  showing  that  the 
accident  arose  out  of  and  in  the  course  of  the  employment,  and 
that  such  injury  proximately  caused  his  death.85 

83.  Richardson  v.    Greenburg,    188  App.  Div.  248,   (1919),   176  X.   Y. 
S.  651,  4  W.  C.  L.  J.  433. 

84.  Jakub  v.  Indus.  Comm.,  (1919),  123  N.  E.  263.  288  111.  87,  4  W.  C. 
L.  J.   153. 

85.  Bucyrus  v.  Townsend,  64  Ind.  App.  — ,  117  N.  E.  565,  15  N.  C.  C. 
A.  646,  1  W.  C.  L.  J.  166;    Insana  v.  Nordenholt  Corp.,  118  N.  Y.  S.  83, 
(1920),  6  W.  C.  L.  J.  478. 

825 


§  332  WORKMEN'S  COMPENSATION  LAW 

A  foreman  fell  while  sweeping  pebbles  off  a  paving,  and  later 
died.  An  autopsy  revealed  that  his  fall  resulted  in  a  fracture  of 
the  skull,  and  that  the  fall  was  probably  due  to  heart  syncope  to 
which  the  previous  condition  of  the  heart  predisposed  it.  In  re- 
versing an  award  in  claimant 's  favor,  the  court  held  that  there  was 
no  evidence  to  sustain  the  finding  of  the  commission  that  deceased's 
death  was  accidental  or  that  it  arose  out  of  the  employment.86 

Where  a  cook  on  a  lighter,  who  was  suffering  from  valvular 
disease  of  the  heart,  in  attempting  to  save  some  of  his  clothes  when 
the  vessel  began  to  sink,  so  aggravated  the  disease  by  his  exertions 
and  excitement  that  he  died,  it  was  held  that  his  death  arose  out 
of  and  in  the  course  of  his  employment.87 

A  bus  driver  fell  from  his  bus  and  later  died.  The  evidence  was 
conflicting  as  to  the  cause  of  the  fall.  The  court  held  that  it  was 
more  probable  that  death  was  caused  by  a  sudden  fatal  heart  at- 
tack than  that  it  was  caused  by  an  accidental  fall  aggravated  by 
the  state  of  the  heart.  The  judge  also  found  that  the  applicant 
had  failed  to  prove  that  the  accident  arose  out  of  the  employment. 
On  appeal  this  finding  was  affirmed.88 

A  woman,  compelled  to  over  exert  herself  while  pulling  carpet 
in  a  manufacturing  establishment,  aggravated  a  previous  condi- 
tion of  weak  heart,  thereby  totally  incapaciting  herself  for  work. 
The  court  held  this  to  be  an  accidental  injury  and  that  it  arose 
out  of  the  employment,  as  the  pulling  of  the  carpet,  although  not 
requiring  such  putting  forth  of  muscular  power  as  would  affect  a 
healthy  person,  still  in  the  case  of  this  woman,  might  have  been 
sufficient  to  cause  the  injury  and  would  be  regarded  as  the  proxi- 
mate cause.89 

A  workman,  employed  in  loading  heavy  bags  on  trucks,  fell  and 
died  soon  after  pushing  a  truck  away  which  he  had  just  loaded. 
The  medical  testimony  was  to  the  effect  that  a  condition  of  fatty 
degeneration  of  the  heart  existed,  but  not  in  such  a  stage  as  to 

86.  Collins  v.  Brooklyn  Union  Gas.  Co.,  171   N.  Y.  App.  Div.   381,   156 
N.  Y.  S.  957,  15  N.  C.  C.  A.  647. 

87.  In  re  Brightman,  220  Mass.  17,  107  N.  E.  527,  8   N.  C.  C.  A.  102; 
Winter  v.  Atkinson  Frizelle  Co ,  37  N.  J.  L.  J.  195,  11  N.  C.  C.  A.  180. 

88.  Thackway  v.  Connelly  &  Sons,  3  B.  W.  C.  C.  37,  8  N.  C.  C.  A.  106. 

89.  In  re  Madden,  222  Mass.  487,  111  N.  E.  379,  14  N.  C.  C.  A.  539. 
826 


ACCIDENT   ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §    333 

cause  death  in  the  absence  of  a  strain.  The  court  held  that  the 
evidence  justified  a  finding  that  the  man  died  from  a  strain  aris- 
ing out  of  and  in  the  course  of  the  employment.00 

An  employee,  who  was  suffering  from  a  weak  heart,  sustained 
an  electric  shock  and  died.  The  evidence  was  conflicting  as  to 
whether  the  death  was  due  to  an  accident  or  to  natural  cau-'->. 
The  hoard  found  that  the  death  was  due  to  an  accident  arising  out 
of  and  in  the  course  of  the  employment.81 

It  has  been  held  that  an  incapitating  injury  to  the  heart 
through  influenza  contracted  by  reason  of  the  employee's  special 
•  xposmr  to  the  disease  at  the  employer's  request  to  aid  oilier 
••ID ploy ees,  was  compensable  under  the  California  Act.92 

§  333.  Heat  Stroke  and  Sun  Stroke.— Where  an  employee 
suffered  a  sunstroke,  the  board  found  that  the  injury  arose  out  of 
and  in  the  course  of  his  employment.  In  affirming  the  award  on 
appeal,  the  court  said:  "On  all  the  evidence  the  board  was  war- 
ranted in  finding  that  the  employee's  injury  arose  out  of  his  em- 
ployment. The  place  where  he  worked  was  a  pit,  with  banks 
winch  attracted  the  extreme  heat  and  shut  off  the  air,  except  from 
the  south.  The  nature  of  his  work  required  him  to  remain  at  it 
steadily.  The  board  well  might  find  as  a  fact  that  the  location 
and  nature  of  the  work  peculiarly  exposed  the  employee  to  the 
danger  of  sunstroke;  in  other  words,  that  the  risk  of  injury  by 
sunstroke  was  naturally  connected  with  and  reasonably  incident 
to  his  employment,  as  distinguished  from  ordinary  risk  to  whi  -u 
the  general  public  is  exposed  from  climatic  conditions  per  se.  Mc- 
Manaman's  Case,  224  Mass.  554,  113  N.  E.  287;  Mooradijiau 's 
Case.  229  Mass.  521,  118  N.  E.  951 ;  Hallett's  Case,  121  N.  E.  50*, 
Jan.  13,  1919;  Morgan  v.  Owners  of  Steamship  Zenaida,  2  B.  W.  C. 

90.  Doughton  v.  Alfred  Hickman,  Ltd.,  (1913),  W.  C.  &  Ins.  Rep.  143,  6 
B.  W.  C.  C.  77,  8  N.  C.  C.  A.  103;    Trodden  v.  T.  M.  Lennard  &  Sons, 
Ltd..  4  B.  W.  C.  C.  190,  8  N.  C.  C.  A.  103. 

91.  Western  Electric  Co.  v.  Indus.  Comm.,  285  111.  279,  120  N.  E.   774, 
3  W.  C.  L    J.  107. 

92.  Engels  Copper  Mng.  Co.  v  Indus.  Comm..  —  Cal.  — ,  192  Pac.  845, 
6  W.  C.  L.  J.  624. 

Note:  For  further  cases  on  heart  failure  or  disease  see  §  197  ante. 

827 


§  333  WORKMEN'S  COMPENSATION  LAW 

C.  19 ;  Davies  v.  Gillespie,  5  B.  W.  C.  C.  64 ;  Kanscheit  v.  Garrett 
Laundry  Co.,  101  Neb.  702,  164  N.  W.  708 ;  State  ex  rel.  Rau  v. 
District  Court,  Ramsey  County,  138  Minn.  250,  164  N.  W.  916,  L. 
R.  A.  1918F,  918;  Hernon  v.  Holahan,  182  App.  Div.  126,  169  N. 
Y.  Supp.  705.  "93 

Where  a  coal  hauler  suffered  from  sunstroke  while  unloading 
coal,  the  court  said :  * '  Speaking  more  specifically  upon  the  sub- 
ject of  exposure  as  a  factor  in  determining  whether  a  resulting  in- 
jury is  to  be  regarded  as  arising  out  of  the  injured  person's  em- 
ployment, we  said  that  the  test  was  to  be  found  in  the  answer  to 
the  inquiry  whether  or  not  the  employee  was  injured  as  a  result 
of  a  greater  exposure  to  the  cause  of  injury  than  that  to  which 
persons  generally  in  that  locality  were  subjected.  90  Conn.  309,  97 

Atl.  322,  L.  R.  A.  1916E,  584.     In  Ahren  v.  Spier,  93  Conn , 

105  Atl.  340,  we  reiterated  the  same  principle  in  substance,  when 
we  said  that:  'An  employment  will  be  the  proximate  cause  of  an 
injury  when  it  is  the  natural  and  necessary  incident  of  the  em- 
ployment or  when  the  employment  brings  with  it  greater  expo- 
sure to  injurious  results  than  those  to  which  persons  generally  in 
that  locality  are  exposed,  and  such  injurious  result  occurs  in  tfre 
course  of  that  employment.'  The  commissioner's  finding  in  the 
present  case  is  that  the  deceased's  exposure  was  far  greater  than 
that  of  the  community  generally,  and  the  risk  from  heat  and  the 
effects  of  the  sun  substantially  greater  than  that  of  the  community. 
Applying  the  prescribed  test  to  these  facts  as  found,  the  right  of 
the  claimant  to  receive  an  award  of  compensation  ig  established  if 
the  finding  is  to  stand.  The  reasons  why  it  should  not  stand  are 
not  apparent  to  us.  Conditions  indicative  of  the  deceased's 
special  exposure  to  risk  from  the  effects  of  the  sun  and  heat  are 
not  to  be  sure,  as  pronounced  as  they  are  in  the  case  of  the  heat 

victim  in  Ahern  v.  Spier,  93  Conn. ,  105  Atl.  340.    But  the 

subordinate  facts  found  plainly  disclose  the  existence  of  such  con- 
ditions. Cunningham,  at  the  time  he  was  overcome,  was 

93.  McCarthy's  Case,  232  Mass.  557,  123  N.  E.  87,  4  W.  C.  L.  J.  96; 
Hernon  v.  Holahan,  182  N.  Y.  App.  Div.  126,  169  N.  Y.  S.  705,  1  W.  C. 
L.  J.  1120,  17  N.  C.  C.  A.  1001;  Dougherty's  Case,  —  Mass.  — ,  (1921), 
131  N.  E.  167. 

828 


ACCIDENT   ARISING   OUT  OP  COURSE  OP  EMPLOYMENT.      §   333 

engaged  in  shoveling  coal,  a  task  alike  strenuous  and  well 
calculated  to  aggravate  the  normal  effects  of  a  superheated 
atmosphere  and  the  rays  of  a  hot  sun.  He  was  shoveling  coal 
from  a  wagon  which  presumably  from  its  use,  was  blackened  with 
coal  dust,  and  therefore  especially  attractive  of  the  sun's  rays.  As 
he  was  shoveling  he  necessarily  disturbed  the  coal,  thus  presum- 
ably discharging  into  the  air  he  breathed  more  or  less  dust.  It  is 
apparent,  therefore,  that  his  employment  differentiated  his  expo- 
sure to  physical  harm  from  that  to  which  the  members  of  the  com- 
munity generally  were  exposed.  The  peril  which  he  faced  was 
made  up,  not  merely  of  the  conditions  produced  by  the  heat  and 
the  rays  of  the  sun  beating  down  upon  him,  but  of  those  condi- 
tions, plus  those  other  aggravating  ones  which  attended  the  work 
which  he  was  doing  in  the  pursuit  of  his  employment."  94 

A  coal  shoveler  suffered  sunstroke  while  unloading  coal.  In  hold- 
ing that  the  accident  arose  out  of  and  in  the  course  of  the  employ- 
ment the  court  said : ' '  This  untoward  event  or  unexpected  condition 
under  which  Ahern's  work  was  carried  on  therefore  constituted 
an  accident  which  directly  and  contemporaneously  caused  this  lo- 
calized abnormal  condition.  We  conclude  that  under  authority  of 
our  decisions  Ahern's  death  from  sunstroke  was  a  compensable  in- 
jury. The  second  question,  'whether  Ah ren  was  exposed  to  such 
risk  as  to  make  the  results  thereof  compensable, '  is  determined  by 
ascertaining  whether  the  sunstroke  arose  '  in  the1  course  of  and  out 
of  his  employment. '  It  clearly  appears  that  he  was  doing  what  he 
was.  employed  to  do  when  he1  was  stricken ;  hence  the  sunstroke  did 
occur  in  the  course  of  his  employment.  'An  injury  "arises  out  of" 
an  employment  when  it  occurs  in  the  course1  of  the  employment 
and  as  a  proximate  cause1  of  it.'  Larke  v.  Hancock  Mutual  Life  Ins. 
Co.,  90  Conn.  303,  97  Atl.  320,  L.  R.  A.  1916  E.  584.  An  employ- 
ment will  be  a  proximate  cause  of  an  injury  when  it  is  the  natural 
and  necessary  incident  of  the  employment,  or  when  the1  employment 
brings  with  it  greater  exposure  to  injurious  results  than  those  to 
which  persons  generally  in  that  locality  are  exposed,  and  such  in- 
jurious result  occurs  in  the  course  of  the  employment.  Larke  v. 

94.    Cunningham  v.  Donovan.  93  Conn.  313.   (1919),  105  Atl.  622,  3  \V 
C.  L.  J.   584,   18  N.  C.   C.  A.  1024. 

829 


§  333  WORKMEN'S  COMPENSATION  LAW 

John  Hancock  Life  Ins.  Co.,  supra.  The  finding  explicitly  brings 
this  case  within  this  rule.  It  does  appear  that  the  sunstroke1  was 
an  incident  of  Ahern's  employment.  And  that  his  exposure  and 
risk  to  sunstroke  in  this  employment  was  far  greater  than  that  of 
the  rest  of  the  community.  This  is  the  final  test  applied  by  us  in 
the  Larke  Case.  That  Ahern  was  not  exposed  to  sunstroke  in 
greater  degree  than  others  in  the  same  employment,  and  than  many 
other  out-of-door  workers,  we  hold  to  be  immarterial,  as  we  did 
in  the  Lake  Case."95 

Where  a  brewery  driver  died  as  the  result  of  a  sunstroke,  the 
commission  found  that  the  heat  prostration  resulting  in  the  death 
of  decedent  was  an  accidental  injury  arising  in  the  course  of  his 
employment  but  not  out  of  it.  Affirming  the  decision,  the  court 
said:  "Cases  of  sunstroke  and  frostbite,  both  arising  from  extreme 
weather  conditions,  although  of  opposite  extremes,  seem  to  be 
analogous.  The  distinction  between  those  cases  and  the  present 
case,  made  by  the  commission  itself,  indicates  that  the  commission 
is  under  no  misapprehension  as  to  the  legal  question  involved,  and 
that  its  determination  herein  is  based  on  the  belief  that  the  work 
in  which  the  deceased  was  engaged  did  not  contribute  to  his 
death.  *  It  was  a  question  of  fact  for  the  commission  to 

determine  whether  the  deceased  was  specially  affected  by  th>3 
severity  of  the  heat  by  reason  of  his  employment.  Although  earlier 
in  the  day  his  duties  required  him  to  unload  a  large  number  of 
half  barrels  of  beer,  he  had  completed  that  work  and  was  returning 
to  the  brewery.  It  does  not  appear  how  long  an  interval  of  time 
elapsed  between  the  unloading  of  the  beer  and  his  death.  He  was 
accompanied  by  an  assistant,  who  presumably  exerted  himself  as 
much  as  the  deceased,  and  who  testified  that  he  did  not  work 
harder  on  hot  days  than  on  other  days,  and  that  he  was  not  special- 
ly affected  by  the  heat,  except  that  it  caused  him  to  prespire.  There 
was  a  large  umbrella  on  the  wagon  as  a  protection  from  the  rays 
of  the  sun:  Apparently  the  deceased  was  returning  from  Flushing 
to  New  York,  and  while  riding  along  the  highway  in  the  ordinary 
manner  he  was  overcome  by  the  heat.  From  all  the  circumstances, 

95.    Ahern  v.  Spier,  93  Conn.   151,  105  Atl.  340,  3  W.  C.  L.  J.  221,  18 
N.   C.  C.  A.    1027. 
830 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      § 

the  commission  was  justified  in  drawing  the  inference  that  the 
heat  prostration  which  caused  his  death  did  not  arise  'out  of  his 
employment  and  that  conclusion  is  not  reviewable1.  "'* 

Where  an  employee  became  overheated  and  died  from  the  effects 
of  the  injury,  the  court,  in  affirming  an  award,  said:  "There 
would  have  been  no  injury  if  the  business  had  not  existed.  The 
heat  and  humidity,  the  corrugated  sheet  iron  in  the  building,  the 
tarred,  roof,  the  poor  ventilation,  and  the  dust  and  particles  of 
matter  in  the  air,  all  acting  together,  caused  the  sickness  that 
brought  about  the  death  of  the  decedent.  A  stronger  man  might 
have  lived,  but  it  is  enough  that  the  industry  brought  about  this 
man's  death.  An  accident  is  an  event  which  proceeds  from  an 
unknown  cause,  or  is  an  unusual  effect  of  a  known  cause,  and 
therefore  not  expected.  *  *  *  It  is  our  view  that  compensa- 
tion is  a  charge  against  the  industry  because  the  industry  itself  is 
responsible  for  the  injury.  As  applied  to  this  case  it  may  be  fairly 
assumed  that  plaintiff's  decedent  would  not  have  died  at  the  tim.» 
he  did  but  for  the  fact  that  he  went  to  the  factory  on  a  hot  day 
and  worked  in  a  heated  building.  Held,  the  death  was  an  acci- 
dent in  the  sense  that  it  was  unexpected,  and  it  was  not  such 
a  result  as  would  naturally  follow  the  employment,  but  grew  out 
of  it  and  the  decedent  died  because  of  it."97 

A  street  laborer  suffered  from  sunstroke,  and  died  a  few  days 
later.  The  court  held  that  the  accident  arose  out  of  the  employ- 
ment, since  there  was  a  substantial  normally  increased  risk,  due  to 
the  character  of  the  street,  coupled  with  its  moist  condition, 
which  contributed  to  the  cause  of  the  accident.98 

Where  a  plumber,  laying  and  jointing  pipes  in  a  trench  in  a 
road,  was  required  to  stoop  a  great  deal,  and  suffered  from  a  heat 

96.  Campbell  v.  Clausen-Flanigan   Brewery,  183  App.  Div.   490,  171  N. 
Y.  Supp.  522,  17  N.  C.  C.  A.  1001,   2   W.  C.  L.  J.  676. 

97.  Young  v.  Western  Furniture  and  Mfg.  Co.,  101  Neb.  696,  164  N.  W. 
712,    15    N.  C.    C.   A.  676;     City  of  Joliet  v.  Indus.   Comm.,    --  111.  — , 
(1920),  126  N.  E.  618,  -5  W.  C.  L.  J.   802. 

98.  State  ex  rel.  Rau  v.  District  Court  of  Ramsey  County,  138  Minn. 
250,  164  N.  W.  916,  15  N.  C.  C.  A.  679;    Maskery  v.  Lancashire  Shipping 
Co.,  Ltd..  (1914),  W.  C.  &  Ins.  Rep.  290,  6  N.  C.  C.  A.  708. 

831 


§•  334  WORKMEN'S  COMPENSATION  LAW 

stroke  caused  by  the  excessive  summer  heat,  it  was  held  that  this 
was  not  an  accident  and  did  not  arise  out  of  the  employment." 

Where  natural  heat  is  intensified  by  artificial  means,  the  tend- 
ency is  to  place  the  injury  on  the  same  footing  as  heat  prostration 
from  artificial  heat,  and  to  treat  an  injury  resulting  therefrom  as 
arising  out  of  the  employment.  Thus,  where  a  seaman  suffered 
from  blindness  while  working  on  a  blackened  steel  deck  for  some 
hours  in  the  blazing  sun,  with  no  shade,  while  in  a  port  in  Hayti 
at  a  temperature  of  108°  and  120°  fahrenheit,  it  was  held  that  the 
employment  involved  special  exposure  to  the  risk  of  sunstroke  and 
that  the  accident  arose  out  of  the  employment.1 

The  English  decisions  hold  that  heat  prostrations  are  injuries 
arising  out  of  the  employment,  when  the  prostration  was  due  to 
artificial  heat  used  in  connection  with  the  workman's  employment. 
Thus,  it  was  held  that  one  who  suffered  from  heat  prostration  while 
drawing  ashpits  in  a  furnace  room  had  sustained  an  injury  arising 
out  of  the  employment.2 

§  334.  Hemorrhage. — A  steam  fitter's  helper,  who  was  en- 
gaged in  tending  a  boiler  for  his  employer,  attempted  to  move 
heavy  steel  ''I". beams,  which  rested  about  three  feet  from  the 
floor,  by  pushing  his  body  against  them.  He  threw  his  weight  into 
this  exertion  several  times,  when  he  suddenly  became  weak,  and 
was  compelled  to  sit  down  and  cease  work  for  the  remainder  of 
that  day,  but  worked  the  next  day.  The  following  days  he  grew 
worse,  vomited,  blood,  and  was  unable  to  work  thereafter.  Defend- 
ant contended  that  the  removing  of  the  "I"  beams  was  not  with- 

99.  Robson,  Eckford  &  Co.,  Ltd.  v.  Blakey,  (1912),  S.  C.  334,  49  Sc. 
L,  R.  254,  5  B.  W.  C.  C.,  536,  6  N.  C.  C.  A.  710;  Rodger  v.  Paisley 
School  Board,  49  Sc.  L.  R.  413,  5  B.  W.  C.  C.  547,  6  N.  C.  C.  A.  710. 

1.  Davis   v.  Gillespie,    105  L.  T.   494,  28   T.  L.   R.  6,  56    Sol.  J.  11,   5  B. 
W.  C.  C.  64;  Morgan  v.  S.  S.  Zenaida,  2  B.  W.  C.  C.  19,  6  N.  C.  C.  714, 

2.  Ismay,  Inrie  &  Co.  v.  Williamson,  77  L.  J.  P.  C.  107,   (1908),  A.  C. 
437;    1  B.  W.  C.  C.  232.  6  N.  C.  C.  A.  714;  Johnson  v.  S.  S.  "Torrington" 
(Owners  of),  3  B.  W.    C.  C.  68,    6    N.  C.  C.    A.  715;     Olson    v.    S.  S. 
"Dorsett,"  (Owners  of),  (1913),  W.  C.  &  Ins.  Rep.  604,  6  B.  W.  C.  C.  658, 
6  N.  C.  C.  A.  715. 

Note:    See  Title  "Sunstroke  and  Heatstroke,"  §  249  ante. 

832 


ACCIDENT  ARISING  OUT  OF  COURSE  OP  EMPLOYMENT.      §   334 

in  the  course  of  plaintiff's  employment,  and  that  he  did  not  suffer 
and  an  "accident."  The  court  held  that,  there  was  an  accident, 
and  the  evidence  supported  a  finding  that  it  arose  out  of  and  in  the 
course  of  plaintiff's  employment.3 

"A  workman's  employment  required  him  to  break  rock  in  a 
quarry  with  a  16-pound  sledge  and  load  the  rock  into  a  car,  which 
was  hard  work.  At  noon  he  was  in  apparent  good  health  and 
spirits,  and  ate  all  of  the  lunch  which  his  wife  brought  to  the 
quarry  for  him.  In  the  afternoon,  while  at  his  working  place, 
and  shortly  after  he  was  seen  beating  a  large  rock  with  his 
sledge,  he  suffered  a  pulmonary  hemorrhage,  from  which  he  died 
before  medical  aid  could  reach  him.  He  had  been  working  in  the 
quarry  for  several  months,  and  before  that  had  worked  for  three 
years  in  the  sacking  department  of  a  cement  plant,  an  exceed- 
ingly dusty  place.  The  defendant  insists  that  the  workman  died 
of  disease;  that  is,  the  injury  did  not  arise  out  of  the  employ- 
ment. The  question  was  one  of  fact  and  should  have  been  sub- 
mitted to  the  jury.  It  is  not  material  that  the  workman's  blood 
vessels  were  weakened  by  disease,  or  that  he  was  predisposed  to 
hemorrhage  because,  for  example,  he  had  breathed  the  dust  of 
the  sacking  department  for  three  years.  The  statute  establishes 
no  standard  of  health  for  workmen,  entitling  them  or  their  de- 
pendents to  compensation,  and  if  the  added  factor  of  physical 
exertion  in  the  employment  were  required  to  effect  the  lesion, 
and  did  so,  the  injury  arose  out  of  the  employment.  That  the 
injury  occurred  in  that  way  and  is  referable  to  a  definite  time, 
place,  and  circumstance,  is  indicated  by  the  workman's  apparent 
good  health  and  strength,  the  suddenness  and  profusion  of  the 
hemorrhage,  the  absence  of  previous  extravasation  of  blood,  and 
other  circumstances."4 

"The  court  found  that  on  January  25,  1917,  John  Rush  re- 
ceived an  accidental  injury  'arising  out  of  and  in  the  course  of 

3.  Manning  v.  Pomerene,  101  Nebr.  127,  162  N.  W.  492,  14  N.  C.  C.  A. 
536. 

4.  Gilllland  v.  Ash  Grove  and   Portland   Cement  Co.   104   Kan.  771, 
(1919).  180  Pac.  798,  4  W.  C.  L.  J.  187;    E.  Baggot  Co.  v.  Indus.  Comjn.. 
(1919),  290  111.  530,  125  N.  E.  254,  5  W.  C.  L.  J.  202. 

833 
W.  C.— 63 


§'  334  "WORKMEN'S  COMPENSATION  LAW 

his  employment'  which  caused  his  death  on  March  3,  1917.  The 
relator  admits  that  Kush  received  the  injury  and  that  it  arose  out 
of  and  in  the  course  of  his  employment,  but  contends  that  the 
evidence  is  not  sufficient  to  sustain  the  finding  that  his  death  re- 
sulted from  his  injury.  He  fell  and  struck  upon  his  head  and  was 
unconscious  for  a  few  moments.  Two  or  three  days  afterwards 
he  resumed  his  duties  and  performed  his  work  as  usual  for  a 
week  or  more  when  he  was  discharged.  During  this  period  he 
appeared  to  be  in  his  normal  condition  except  that  an  impedi- 
ment in  his  speech  seemed  to  be  more  pronounced  than  thereto- 
fore. On  February  19th  he  entered  a  hospital  where  he  died  on 
March  3rd.  The  doctor  who  made  an  autopsy  testified  that  death 
resulted  from  a  hemorrhage  of  the  brain  of  traumatic  origin,  and 
that  a  microscopical  examination  disclosed  'repair  cells'  which 
showed  that  the  original  injury  had  been  received  several  weeks 
previously.  "We  are  satisfied  that  the  evidence  justified  the  find- 
ing."5 

"Where  the  evidence  offered  was  as  consistent  with  a  finding 
that  the  cerebral  hemorrhage  preceded  the  fall  and  caused  the 
fall,  as  it  was  with  a  finding  that  the  fall  caused  the  hemorrhage, 
the  court  held  that  the  applicant  had  failed  to  discharge  the  bur- 
den of  proving  that  the  death  was  the  result  of  an  accident  aris- 
ing out  of  the  employment.6 

An  employee,  59  years  of  age,  ruptured  his  spinal  cord  while 
pushing  a  wheelbarrow  over  a  rough  street.  The  court  held 
that  deceased's  collapse  was  due  to  the  sudden  giving  way  of  a 
bloodvessel  in  his  back  "due  to  the  muscular  strain  and  exertion 
employed  by  him  in  propelling  said  wheelbarrow,"  and  that  de- 
ceased's death  was  due  to  an  accident  arising  out  of  the  employ- 
ment.7 

A  railroad  fireman  fell  out  of  an  engine  cab,  and  was  found 
unconscious  on  the  side  of  an  embankment  twelve  feet  high,  and 

5.  State  ex  rel.  London  &  L.  Indemnity  Co.  v.  District  Court  of  Henne- 
pin  Co.,  139  Minn.  409,  166  N.  W.  772,  17  N.  C.  C.  A.  790,  1  W.  C.  L.  J.  835. 

6.  In  re  Sanderson,  224  Mass.  558,  113  N.  E.  355,  14  N.  C.  C.  A.  428. 

7.  State  ex  rel.  Puhlmann  v.  District  Ct.  Brown  Co.,   137  Minn.  30, 
162  N.  W.  678,  14  N.  C.  C.  A.  545. 

834 


ACCIDENT   ARISING   OUT  OP  COURSE  OP  EMPLOYMENT.      §   334 

died  later  from  hemorrhage  of  the  brain  and  fracture  of  the  skull.  It 
was  contended  that  the  hemorrhage  and  death  was  due  to  a  syph- 
ilitic condition  and  consequent  softening  of  the  brain,  and  that 
the  death  was  not  proximately  due  to  the  effects  of  the  fall.  The 
court  held  that  the  evidence  was  sufficient  to  justify  a  finding 
that  the  hemorrhage  was  due  to  the  accidental  fall  arising  out 
of  the  employment.8 

A  workman  suffered  a  hemorrhage  as  a  result  of  exerting  pres- 
sure against  his  abdomen  while  furrowing  posts.  The  court  held 
that  a  finding  that  his  death  was  due  to  an  accident  arising 
out  of  and  in  the  course  of  his  employment  was  warranted,  evfii 
though  the  parts  on  which  the  pressure  was  exerted  were  already 
diseased  and  weakened  by  cancer." 

A  workman  suffered  from  an  attack  of  Cerebral  hemorrhage,  as 
the  result  of  an  injury,  and  went  home.  "When  the  effects  of  the 
first  hemorrhage  were  about  done  he  suffered  a  second  hemorrhage. 
The  court  held  that  the  burden  of  proving  that  the  second 
hemorrhage  was  not  due  to  the  original  injury  rested  upon  the 
party  alleging  it,  for  the  logical  deduction  was  that  the  second  was 
a  consequence  of  the  first,  and  that  the  workman's  incapacity  arose 
from  the  injury.10 

An  employee,  who  engaged  in  driving  a  team  of  horses  at- 
tached to  a  scraper,  was  taken  sick  and  died  from  internal  hemor- 
rhage, and  it  was  claimed  that  while  at  work  he  was  called  to  as- 
sist in  swinging  around  or  lifting  the  end  of  one  of  the  dump 
wagons  and  suffered  a  strain  which  caused  the  hemorrhage. 
The  court  held  that  there  was  no  sufficient  evidence  to  justify  a 
finding  that  the  death  was  due  to  an  accident,  and  reversed  a 
finding  awarding  compensation.11 

8.  Peoria  Railway  Terminal  Co.  v.  Indus.  Bd..  279  III.  357,  116  N.  B. 
651,  15  N.  C.  C.  A.  632. 

9.  Voorhees  v.  Smith  Schoonmaker  Co.,  86  N.  J.  L.  500,  92  Atl.  280.  7 
N.  C.  C.  A.  646. 

10.  M'Innes  v.  Dunsmuir  &  Jackson  Ltd..  (1908),  S.  C.  1021.  45  Sc.  L. 
R.  804,  1  B.  W.  C.  C.  226,  7  N.  C.  C.  A.  646. 

11.  Englebretson  v.  Industrial  Ace.  Comm.,  170  Cal.  793,  151  Pac.  421, 
10  N.  C.  C.  A.  545. 

Note:  See  topics  "Cerebral  Hemorrhage"  §  163  ante  and  "Hemorrhage" 
§  198  ante. 

835 


§  335  WORKMEN'S  COMPENSATION  LAW 

§  335.  Hernia. — A  carpenter,  engaged  in  fitting  doors  for  cup- 
boards, suffered  a  hernia.  The  court,  in  holding  that  the  evidence 
was  insufficient  to  justify  a  finding  that  the  injury  arose  out  of  the 
employment,  said:  "A  workman  in  order  to  be  entitled  to  com- 
pensation for  hernia  must  clearly  prove:  (1)  That  the  hernia 
is  of  recent  origin,  (2)  that  its  appearance  was  accompanied  by 
pain,  (3)  that  it  was  immediately  preceded  by  some  accidental 
strain  suffered  in  the  course  of  the  employment,  and  (4)  that  it 
did  not  exist  prior  to  the  date  of  the  alleged  injury.  Claimant 
testifies  that  in  1909  he  had  a  double1  hernia;  that  he  could  not 
tell  how  it  occured;  that  he  suffered  no  pain;  that  it  came  upon 
him  while  he  was  engaged  in  the  lightest  kind  of  work;  that  lie 
lost  no  work  as  a  result  of  it;  that  he  was  operated  on  and  there- 
after wore  a  truss.  W.ith  this  very  unsatisfactory  evidence  before 
the  commission,  it  is  impossible  to  say  that  the  'recent  origin'  of 
the  hernia  was  clearly  proven.  It  must  be  noticed  that  there  is 
no  direct  history  of  any  accident,  such  as  lifting  or  straining.  It 
is  probable  that  in  this  case  the  abdominal  wall  was  weakened  by 
more"  or  less  previous  coughing.  (Claimant  was  afflicted  with 
tuberculosis.)  It  is  possible  that  with  the  above  weakness,  the 
hernia  came  on  as  a  result  of  planing.  The  Legislature  has  seen 
fit,  in  our  Workmen's  Compensation  Act,  to  make  hernia  the  sub- 
ject of  the  special  provisions  and  exceptions  herein  before  set  out. 
This  court  must  give  some  effect  to  those  exceptions.  To  sustain 
the  findings  and  award  of  the  commission  and  the  district  court 
in  the  instant  case  would  be  to  nullify  them  entirely  and  leave 
claims  for  injury  due  to  hernia  on  an  identical  footing  with  all 
others,  if  not  to  prefer  them.  In  fact,  if  the  contentions  of  tb.e 
defendant  in  error  be  upheld,  it  is  only  necessary,  in  case  of  such 
a  claim,  to  produce  evidence  from  which  a  reasonable  inference 
may  be  drawn  that  the  hernia  appeared  'in  the  course  of  the  em- 
ployment.' It  is  impossible  for  this  court  to  so  nullify  these  ex- 
ceptions, or  read  them  out  of  the  statute."12 

12.  McPhee  &  McGinnity  Co.  v.  Indus.  Comm.  of  Colo.  (1919),  — 
Colo.  — ,  185  Pac.  268,  5  W.  C.  L.  J.  160;  Matorls  v.  Estey  Piano  Co., 
(1919),  178  N.  Y.  S.  408,  5  W.  C.  L.  J.  102,  189  App.  Div.  297. 

836 


ACCIDENT   ARISING   OUT  OP  COURSE  OP  EMPLOYMENT.      §   335 

Where  an  employee  felt  a  pain  in  his  right  side,  and  the  fol- 
lowing day  a  physician  discovered  a  right  inguinal  hernia,  the 
court  held  that  there  was  no  evidence  to  justify  a  finding  that 
the  hernia  resulted  from  an  accident  arising  out  of  the  employ- 
ment, and  said:  "It  does  not  follow  that,  because  a  man  had  a 
pain  in  his  side  while  doing  his  ordinary  work,  without  slipping, 
falling,  or  other  mishap,  and  a  physician  finds  an  inguinal  hernia 
the  next  day,  that  the  hernia  resulted  from  accidental  injuries, 
even  though  the  physician  adds  to  his  declaration,  in  parenthesis 
the  word  'traumatic.'  This  word,  however  much  abused  in  mat- 
ters relating  to  insurance,  contemplates  some  external  violence, 
some  wounding  or  bruising  of  the  body,  and  no  one  pretends 
that  anything  of  the*  kind  occurred  in  this  case.  The  claimant 
himself  merely  says  that  he  was  doing  his  usual  work,  making  no 
suggestion  of  anything  happening,  except  that  he  felt  a  'severe 
pain  in  the  right  side,'  such  as  all  persons  experience,  no  doubt, 
at  some  time  in  their  lives,  and  the  next  day  a  'right  inguinal 
hernia*  is  discovered,  and  this  simple  pain  in  the  side  is  translat- 
ed into  an  accident,  within  the  meaning  of  a  statute  designed  to 
protect  against  the  extraordinary  risks  of  certain  designated  em- 
ployments. Alpert  v.  Powers,  181  App.  Div.  802,  167  N.  Y.  Supp. 
385.  There  is  not  even  a  suggestion  that  this  hernia  had  not  ex- 
isted to  the  knowledge  of  the  claimant  prior  to  this  alleged  injury. 
It  is  not  an  uncommon  thing  for  men  with  hernia  to  work  at  heavy 
labor  and-  to  suffer  at  times  from  exertion,  and  there  is  not  a  par- 
ticle of  testimony  from  which  it  may  be  legitmately  inferred  that 
this  was  not  the  case  with  the  claimant.  No  connection 
whatever  is  shown  between  the  performance  of  the  labors  of 
the  claimant  and  the  hernia  for  which  this  award  has  been  made* — 
no  identity  of  time  or  of  place,  and  nothing  which  brings  the  case 
within  any  of  the  provisions  of  the  statute;  and  the*  capital  of  a 
legitimate  business  ought  not  to  be  taken  to  compensate  for  an  al 
leged  injury  which  is  not  shown  to  have  been  produced  in  connec- 
tion with  tbe  strvices  rendered  by  the  claimant."18 

13.    Cavalier  v.  Chevrolet  Motor  Co.  of  N.  Y.,  (1919),  178  N.  Y.  Supp. 
489.  5  W.  C.  L.  J.  93,  189  App.  Div.  412. 

837 


§  335  WORKMEN'S  COMPENSATION  LA\V 

Where  an  employee  claimed  to  have  sustained  an  injury  in  the 
course  of  his  employment  resulting  in  a  hernia,  and  the  evidence 
was  conflicting,  the  medical  testimony  tending  to  establish  that 
the  hernia  was  of  long  standing  and  that  there  were  no  indica- 
tions of  a  recent  injury,  compensation  was  denie'd.  In  affirm- 
ing the  decision,  the  court  said:  "It  is  conceded  plaintiff  was 
afflicted  with  scrotal  hernia,  requiring  an  operation  for  its  cure. 
He  claimed  that  it  was  caused  by  an  accident  which  he  suffered 
while  in  the  defendant's  employ.  The  burden  of  proof  rested 
upon  him  to  establish  the  fact.  If  there  was  conflicting  evidence 
upon  that  affirmance  and  denial,  direct  or  circumstantial,  fairl> 
raising  an  issue  of  fact,  it  was  for  the  board  to  decide  and  its  de- 
cision upon  that  point  disposes  of  the  case."14 

"Where  an  employee  claimed  that  while  lifting  a  heavy  timber 
he  sustained  an  injury  causing  a  hernia,  but  it  appeared  that  he 
neither  slipped  nor  fell  while  lifting  the  timber,  nor  did  it  strike 
him  in  any  way,  the  court,  in  dismissing  the  case,  said:  "It  is 
settled  by  our  decisions  that  before  an  employee  is  entitled  to  re- 
cover compensation  he  must  establish  the  fact  that  he  received  an 
accidental  injury  which  arose  out  of  and  in  the  course  of  his  em- 
ployment. '  '15 

Where  an  employee  died  as  the  result  of  a  hernia,  and  the 
industrial  commission  found  that  the  hernia  was  due  to  an  acci- 
dent arising  out  of  the  employment,  and  an  accident  seemed  to 
be  the  only  reasonable  explanation,  under  the  circumstances,  for 
the  existence  of  the  hernia,  the  court  -held  that  the  finding  was 
conclusive.,16 

An  employee's  duties  were  to  lift,  carry  and  throw  cord  wood 
into  a  furnace.  He  went  from  his  home  to  his  work  on  the  morn- 
ing of  the  injury  in  good  health,  and  upon  his  return  he  was 
found  to  be  suffering  from  a  hernia.  An  operation  revealed 

14.  Nagy  v.  Solvay  Process  Co.,  201  Mich.  158,  166  N.  W.  1033,  17  N. 
C.  C.  A.  252,  1  W.  C.  L.  J.  1049;    Alpert  v.  J.  C.  &  W.  E.  Powers,  223  N. 
Y.  97,  119  N.  E.  229,  17  N.  C.  C.  A.  253,  2  W.  C.  L.  J.  106. 

15.  Takles  v.  Bryant  &  Detwiler  Co.,  200  Mich.  350,  167  N.  W.  36,  1 
W.  C.  L.  J.  1031. 

16.  Fleming  v.  Robert  Gair  Co.,  162  N.  Y.  S.  298,  14  N.  C.  C.  A.  131, 
176  App.  Div.  23. 

838 


ACCIDENT  ARISING   OUT  OP  COURSE  OP   EMPLOYMENT.      §   335 

another  hernia  of  previous  origin  and  both  were  operated  upon 
and  infection  resulted  in  both  wounds  causing  death.  It  was 
contended  that  it  was  not  known  which  wound  became  infected, 
but  the  court  said  that  it  was  a  reasonable  conclusion  that  both 
wounds  were  infected  during  the  operation  and  that  the  fatal 
blood  poisoning  would  have  taken  place  even  if  the  injured  man 
had  only  been  operated  upon  for  the1  injury  arising  from  the 
accident.  The  court  stated  the  general  rule,  namely;  "If  an 
accident  necessitates  an  operation  and  death  ensues,  even  though 
it  is  not  a  natural  and  probable  consequence,  the  death  may,  )t 
the  chain  of  causation  is  unbroken,  be  said  to  have  in  fact  resulted 
from  the  injury."17 

A  brewery  assistant  strained  himself  while  lifting  a  cask,  which 
strain  resulted  in  a  rupture  in  the  same  place  where  there  had 
been  a  rupture  some  years  previous.  The  county  judge  found  that 
the  injury  was  caused  by  an  accident,  within  the  meaning  of 
the  English  Compensation  Act,  but  that  it  did  not  arise  out  of 
the  employment,  but  was  brought  about  gradually  as  the  result 
of  the  absence  of  support.  On  appeal,  the  court,  in  holding  that 
the  injury  was  due  to  an  accident  arising  out  of  the  employment, 
said:  "Once  you  come  to  the  conclusion  that  there  was  an  acci- 
dent, and  that  there  wa«  a  rupture  occasioned  by  the  accident, 
I  cannot  see  the  importance  of  considering  whether  there  was  any 
unusual  strain,  or  whether  it  was  a  strain  which  he  was  subjected 
to  once  a  week,  if  you  like  for  many  years.  At  some  particular 
time  the  disability  which  the  man  brings  with  him  leads  to  an  acci- 
dent, and  if  you  find  that  on  the  facts,  I  do  not  see  how  it  can 
be  said  that  the  learned  judge  had  any  right  to  deal,  with  this  as 
he  did,  apparently  thinking  it  necessary  to  prove  there  was  some 
unusual  strain."18 

Where  an  employee  suffered  from  chronic  myocarditis  prior  to 
an  operation  for  the  relief  of  a  hernia,  which  was  caused  by  an  acci- 
dental injury  arising  out  of  the  employment,  and  he  died  from 
this  disease  six  weeks  after  the  operation,  an  award  was  reversed, 

17.  Eddies  v.  School  Dis.  of  Winnipeg  No.  1,  22  Manitoba  240,  21  W.  L. 
R.  214.  2  W.  W.  R.  265.  2  Dom.  L.  R.  696,  (1912),  14  N.  C.  C.  A.  642. 

18.  Brown  v.  Kemp,  6  B.  W.  C.  C  725,  14  N.  C.  C.  A.  635. 

839 


§  336  WORKMEN'S  COMPENSATION  LAW. 

the  court  saying:  "To  establish  the  fact  that  a  death  resulted 
from  an  injury,  it  is  clearly  not  sufficient  jbo  prove  that  the  person 
received  the  injury;  that  an  operation  was  performed  on  account 
thereof,  and  after  he  had  apparently  recovered  from  the  effect 
of  the  operation  and  the  anaesthesia,  he  died  from  a  disease  that 
existed  before  the  injury."19 

Deceased  had  done  some  heavy  lifting  early  in  the  morning, 
and  on  the  afternoon  of  the  same  day  he  was  taken  violently 
ill  with  strangulated  hernia.  The  evidence,  including  medical 
testimony,  was  to  the  effect  that  the  hernia  was  of  very  recent 
and  accidental  origin.  It  was  held  that  such  evidence  was  suf- 
ficient to  sustain  a  finding  that  the  injury  was  caused  by  an 
accident  arising  out  of  the  employment.20 

A  stoker,  who  was  suffering  from  a  rupture,  suffered  a  stran- 
gulation of  the  hernia  while  engaged  in  his  regular  duties  of  stok- 
ing. The*  duties  of  a  stoker  required  great  abdominal  strain.  The 
court  held  that  the  subsequent  death  was  due  to  the  original  accid- 
ent arising  out  of  the  employment.21 

§  336.  Independent  Contractor  Doing  Extra  Work. — The 
owner  of  a  dredge  contracted  to  lease  his  own  dredge  to  the  com- 
pany and  to  make  repairs  thereto,  with  the  services  of  himseK 
or  a  substitute.  The  person  who  hired  the  dredge  agreed  to  furnish 
the  supplies.  Upon  a  failure  to  furnish  supplies  the  owner 
of  the  dredge  found  it  necessary  to  go  ashore  for  supplies.  While 
cranking  the  engine  in  the  motor  boat,  which  was  used  to  reach 
the  shore,  it  backfired  and  broke  his  arm.  The  court  held  that 
while  claimant  was  going  ashore  for  supplies  he  was  an  employee 
of  the  person  hiring  the  dredge,  and  the  injury  sustained  arose 

19.  Tucillo  v.  Ward  Baking  Co.,  167  N.  Y.  S.  666,  15  N.  C.  C.  A.  637, 
180  App.  Div.  302. 

20.  Andreini  v.  Cudahy  Packing  Co.  &  Casualty  Co.  of  America,  1  Cal. 
Ind.  Ace.  Com.  Dec.  8,  6  N.  C.  C.  A.  390. 

21.  Scales  v.  West  Norfolk  Farmer's  Manure  and  Chemical  Co.,  (1913), 
W.  C.  &  Ins.  Rep.  165,  3  N.  C.  C.  A.  276. 

Note:  For  further  cases  on  this  subject  see  §  200  ante,  also  see 
"Strains"  §  247  ante.  See  Rupture  §  349  post. 

840 


ACCIDENT  ARISING   OUT  OP  COURSE  OF  EMPLOYMENT.      §    337 

out  of  the  employment,  even  though  as  to  the  operation  of  the 
dredge  proper  he  was  an  independent  contractor.21 

Claimant  was  employed  by  defendant  in  his  real  estate  business. 
He  received  a  salary  of  $60.00  per  month,  and  was  to  perform 
certain  services  as  directed,  such  as  collecting  rents  and  renewing 
insurance  policies.  He  was  also  allowed  commisssions  on  new 
business,  provided  he  did  not  neglect  his  regular  duties.  He  was 
also  to  receive  commissions  on  sales  of  real  estate  All  negotiations 
for  sales  of  real  estate  were  tc  be  brought  to  defendant's  office  to 
be  closed.  On  the  day  of  the  injury  claimant  started  to  another 
city  to  collect  the  premium  on  an  insurance  policy,  and  to  nego- 
tiate the  exchange  of  some  real  estate.  Neither  errand  was  included 
in  the  duties  covered  by  his  monthly  salary.  While  defendant 
knew  of  the  real  estate  transaction,  he  did  not  know  that  it  was 
to  be  closed  on  the  day  in  question.  In  affirming  the  award  against 
the  contention  that  applicant  was  an  "independent  contractor 
or  partner"  with  the  defendant,  the  court  said:  "The  defendant 
was  entitled  to  all  Trobitz's  working  hours  and  waa  empowered 
to  direct  his  labor.  In  either  capacity  he  was  an  employee.  It 
is  not  an  uncommon  thing  for  retail  merchants,  for  laundrymen, 
and  the  like  to  pay  a  commission  to  the  drivers  of  their  delivery 
wagons  for  all  new  business  which  they  bring  in.  It  has  never 
been  held  that  this  circumstance  creates  a  distinct  relationship  in 
law.  *  *  *  A  certain  amount  of  freedom  of  action  was  inher- 
ent in  the  nature  of  the  work  which  the  injured  man  performed, 
but  this,  however,  did  not  change  the  character  of  his  employment, 
for  the  employer  himself  still  had  a  general  supervision  and  con- 
trol over  it."18 

§  337.  Infection  From  Various  Causes. — An  employee  sustained 
a  contused  wound  on  the  great  toe  of  his  right  foot  while  engaged 
in  the  service  of  the  petitioner.  He  continued  to  work  for  a  couple 
of  days  and  then  had  his  toe  dressed  by  a  doctor,  after  which  he 

22.  Powley  v.  Vivian  &  Co.,  169  App.  DIv.  170,  164  N.  Y.  S.  426,  10  N. 
C.  C.  A.  835. 

23.  Cameron  v.  PillBbury.  173  Cal.  83.  159  Pac.  149,  14  N.  C.  C.  A.  496. 
Note:     See  "Independent  Contractors"   §  37  ante  and  "Who  are  Em- 
ployees" §§20  and  .21. 

841 


§•  337  WORKMEN'S  COMPENSATION  LAW 

returned  to  work,  but  on  account  of  the  pain  of  his  toe  he  attempt- 
ed to  treat  it  himself.  Later  a  streptococcic  infection  developed 
about  the  toe,  and  was  transferred  to  the  face  and  resulted  in 
septicaemia,  from  which  he  died.  The  court  held  that  if  the  em- 
ployee in  treating  the  toe  himself  conducted  himself  as  would  a 
reasonably  prudent  person  in  his  situation,  and  thereby  innocently 
enhanced  the  original  injury,  so  that  the  infection  was  communicat- 
ed to  his  face,  and  he  developed  erysipelas  and  septicaemia,  causing 
death,  a  finding  that  the  original  injury  continued  to  the  end  and 
that  the  death  was  due  to  the  accident  arising  out  of  the  employ- 
ment was,  in  view  of  the  evidence,  justifiable.24 

An  employee  was  kicked  by  a  horse  and  applied  salve  and  con- 
tinued to  work  without  consulting  a  doctor.  Infection  set  in,  and 
death  resulted.  The  court  held  that  it  could  not  be  said  that  de- 
ceased was  guilty  of  unreasonable  refusal  to  consult  a  doctor  when 
he  was  not  informed  that  the  employer  was  furnishing  the  doctor. 
The  court  held  further  that  the  death  was  proximately  due  to  the 
accident  arising  out  of  the  employment  and  not  to  disease,  for  while 
conceding  that  persons  highly  appreciative  of  the  dangers  result- 
ing from  infection  would  at  once  consult  a  physician,  "we  cannot 
say  that  this  is  true  of  the  great  mass  of  mankind  under  the  same 
or  similar  circumstances.  It  is  a  matter  of  common  knowledge 
that  strong,  healthy  men  engaged  in  manual  labor  frequently 
give  such  trifling  injuries,  which  would  arouse  the  apprehension 
of  others,  little1  thought,  and  in  comparison  with  the  number  of 
such  injuries  the  instances  followed  by  infection  are  not  numerous. 
If  they  are  treated  at  all,  home  remedies  are  applied,  just  as  was 
done  by  the  deceased.  Carbolic  salve  was  his  remedy  for  cuts, 
bruises,  etc.,  and  this  he  applied.  The  injury  itself  was  not  suf- 
ficient to  keep  him  from  his  work,  and  he  went  about  the  per- 
formance of  his  daily  duties,  attaching  little  consequence  to  the 
injury.  "We  do  not  think  it  is  customary  for  laboring  men  to  rush 
to  a  doctor  every  time  they  sustain  a  cut,  bruise,  or  abrasion  of 
the  skin,  and  we  cannot  say  as  a  matter  of  law  that  the  conduct 

24.  Bethlehem  Shipbuilding  Corporation,  Ltd.  v.  Indus.  Ace.  Comm.  of 
Gal.,  —  Cal.  — ,  (1919),  185  Pac.  179. 

842 


ACCIDENT  ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §   337 

of  the  deceased  was  not  that  of  the  great  mass  of  mankind  under 
the  same  or  similar  circumstances."25 

An  employee  scratched  his  right  hand  while  cleaning  gears. 
Blood  poisoning  followed,  resulting  in  his  death.  The  court  held 
that  there  was  sufficient  evidence  to  justify  a  finding  that  the  in- 
fection was  due  to  the  original  injury.28 

Decedent,  while  working  in  a  blacksmith  shop  connected  with 
defendant's  plant,  pinched  his  fingers  and  infection  resulted,  neces- 
sitating four  operations.  After  the  fourth  operation  he  developed 
inflammatory  rheumatism.  The  medical  evidence  was  conflicting 
as  to  whether  the  rheumatism  was  due  to  the  infection  or  a 
pre-existing  disease.  The  court  held  that  there  was  sufficient  evi- 
dence to  justify  a  finding  that  the  death  was  due  to  the  injury 
occurring  in  the  course  of  the  employment.27 

Deceased  suffered  an  injury  while  setting  pins  in  a  bowling  alley, 
and  was  sent  to  a  hospital,  where  he  was  treated  until  practically 
cured.  Subsequently  he  entered  a  hospital,  where  he  died.  The 
evidence  tended  to  show  that  there  was  no  connection  between 
the  injury  and  the  death,  and  there  was  evidence  to  the  effect 
that  deceased  had  tried  to  get  up  and  fell.  The  court  held  that 
on  the  whole  there  was  no  evidence  from  which  a  fair  inference 
could  be  drawn  that  deceased's  death  was  caused  by  the  injury  oc- 
curring in  the  course  of  the  employment.28 

Deceased  suffered  a  scratch  to  his  hand  and  blood  poisoning 
followed  causing  death.  He  had  been  handling  bags  while  at 
work  and  there  was  evidence  that  when  he  left  home  for  work  in 
the  morning  he  had  no  scratches  upon  his  hand,  but  upon  return- 
ing in  the  evening  his  hand  was  scratched  and  the  testimony  of 
fellow  workers  was  to  the  effect  that  scratches  were  often  received 

25.  Banner  Coffee  Co.  v.  Bellig,  170  Wis.  157,   (1919),  174  N.  W.  544. 
5  W.  C.  L.  J.  118;    State  Indus.  Comm.  v.  Tolhurst  Mach.  Works,  184  N. 
Y.  S.  608,  7  W.  C.  L.  J.  136. 

26.  Hege  A  Co.  v.  Tompklns,    (1919),  121  N.  E.  677,    (Ind.  App.),  3 
W.  C.  L.  J.  451. 

27.  Perdew  v.  Nufer  Cedar  Co.,  201  Mich.  620,  167  N.  W.  868,  16  N.  C. 
C.  A.  921,  2  W.  C.  L.  J.  313. 

28.  Perry  v.  Woodward  Bowling  Alley  Co.,  196  Mich.  742,  163  N.  W. 
52, 17  N.  C.  C.  A.  885. 

843 


§•  337  WORKMEN'S  COMPENSATION  LAW 

in  that  line  of  work.  'There  is  in  evidence  a  copy  of  a  letter, 
dated  April  28,  1916,  written  by  the  Dickson  Company  to  a  rep- 
resentative of  the  casualty  company  in  which  the  company  carried 
insurance,  which  contains  the  following :  '  In  regard  to  the  case  of 
Robert  I.  Rackman,  will  advise  that  our  Supt.,  Mr.  Brown,  inter- 
viewed all  the  workmen  here  in  the  plant,  and  found  only  one  man 
that  knew  anthing  about  R.  I.  Rackman  being  injured.  We  will 
forward  you  his  signed  statement  as  soon  as  he  returns  to  work.' 
The  trial  court  found  that  the  death  of  deceased  resulted  from 
this  scratch,  and  that  the  injury  arose  out  of  and  in  the  course 
of  his  employment.  The  principal  question  in  the  case  is,  whether 
the  evidence  sustains  this  finding.  The  evidence  is  quite  satis- 
factory that  the  blood  poisoning  and  the  ensuing  death  were  the 
result  of  the  scratch.  The  medical  testimony  is  to  that  effect  and 
the  sequence  of  events  leaves  vefty  little  doubt  on  that  point.  That 
the  scratch  was  received  while  he  was  engaged  in  his  employment 
is  not  so  clear.  There  was  no  direct  evidence  that  the  scratch  was 
so  received.  We  think,  however,  the  evidence  is  sufficient.  The 
fact  that  deceased  had  no  scratch  when  he  left  home  in  the  morn- 
ing and  had  one  when  he  came  home  from  work  at  night,  that 
he  must  have  come  home  immediately,  for  he  was  home  within 
half  an  hour  of  the  time  he  quit  work,  that  the  scratch  had  blood 
upon  it  which  had  hardened,  indicating  that  the  scratch  had  been 
received  earlier  than  the  time  he  quit  work,  that  it  was  such  a 
scratch  as  he  was  not  likely  to  receive  on  a  trip  from  his  work  to 
his  home,  and  such  a  scratch  as  he  might  well  have  received  while 
at  work,  these  facts,  in  connection  with  the  letter  above  quoted, 
which  is  of  some  force  as  an  admission,  were  such  that  the  court 
might  infer  that  the  scratch  was  received  while  deceased  was  in 
the  course  of  his  usual  work  and  that  it  arose  out  of  it."29 

An  embalmer's  helper  died  as  the  result  of  an  infection  alleged 
to  have  been  caused  by  germs  entering  a  wound  on  his  hand.  De- 
ceased was  engaged  in  cleaning  instruments  used  in  embalming 
the  body  of  a  woman  who  died  from  a  virulent  type  of  streptococcus 

29.  State  ex  rel.  Dickinson  v.  District  Court  of  Hennepin  County,  139 
Minn.  30,  165  N.  W.  478,  15  N.  C.  C.  A.  585. 

844 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    337 

infection,  and  it  was  claimed  that  it  was  in  this  manner  that  he 
incurred  the  infection.  In  affirming  an  award,  the  court  said: 
"We  are  of  the  opinion  that  an  inference  favorable  to  the  claimant 
can  be  arrived  at  from  the  evidence  in  the  case,  without  indulging 
in  any  guess  or  speculation.  Germs  cannot  be  traced  in  their  in- 
dividual wanderings,  like  persons.  No  one  ever  saw  a  germ  go 
from  a  source  of  infection  to  its  victim's  body.  Means  and  sources 
of  infection  are,  as  a  general  rule  based  on  observed  conditions."30 

Deceased  stepped  upon  a  nail  while  collecting  dirt  in  a  street, 
and  infection  resulted,  and  death  followed  from  tetanus.  The  court, 
in  holding  that  the  death  was  due  to  an  accident  arising  out  of 
the  employment  and  not  to  a  risk  of  the  commonalty,  said:  "The 
commission  has  found  that  one  of  the  duties  of  deceased  was 
going  about  the  streets,  shoveling  dirt  into  his  wagon.  One  of 
the  necessary  incidents  of  driving  about  the  streets  was  getting 
on  and  off  his  wagon.  While  the  danger  of  stepping  on  the 
nail  may  be  said  to  have  been  common  to  all  persons  using  the 
stri-et,  an  injury  therefrom  to  a  mere  passer  along  the  street, 
not  engaged  in  a  harzardous  employment,  or  in  the  performance 
of  an  act  incidental  thereto,  would  probably  not  afford  a  right 
to  compensation  under  the  act.  The  hazardous  employment  of 
the  deceased  required  his  continued  presence  upon  the  street  in 
the  discharge  of  the  duties  of  his  employment.  The  mere  fact 
that  a  person  not  engaged  in  a  hazardous  employment  was  ex- 
posed to  the  danger  of  a  similar  injury,  should  he  chance  to  travel 
that  way,  furnishes  no  argument  for  a  denial  of  the  right  of 
compensation  to  a  person  whose  hazardous  employment  compelled 
his  constant  presence  on  the  street."81 

A  domestic  servant  cut  his  index  finger  on  the  broken  edge  of 
a  tray,  and  blood  poison  resulted,  necessitating  amputation  of  the 
finger.  It  was  held  that  this  was  an  accidental  injury  arising  out 
of  the  employment." 

80.     Blaess  v.  Dolph,  195  Mich.  137,  161  N.  W.  885,  15  N.  C.  C.  A.  587, 

31.  Putnam  v.  Murray,  174  N.  Y.  App.  Div.  720,  160  N.  Y.  S.  811,  15  N. 
C.  C.  A.  256;    In  re  Bean,  227  Mass.  558,  116  N.   E.  826. 

32.  Albi  v.  Puth,  37  N.  J.  L.  J.  9. 

Note:  The  subject  of  infection  has  also  been  treated  under  the  follow- 
ing heads,  "Infection"  under  the  chapter  on  Accidents,  "Friction  In- 
juries." "Abrasions."  "Eye  Injuries,"  "Anthrax,"  "Bloodpoison." 

845 


§  339  WORKMEN'S  COMPENSATION  L.AW 

§  338.  Influenza.— The  California  act  (st.  1917,  Subd.  4,  sect. 
3)  defines  "  in  jury"  as  used  in  the  act  as  including  any  injury  or 
disease  arising  out  of  the  employment.  So  where  a  hospital 
steward  died  of  influenza  contracted  in  the  course  of  his  employ- 
ment, compensation  was  awarded  even  though  an  influenza  epidemic 
was  raging  in  the  city  and  one  out  of  every  ten  inhabitants  con- 
tracted it.  The  medical  testimony  was  to  the  effect  that  the  danger 
of  contracting  the  disease  was  from  five  to  eight  times  greater 
among  those  exposed  to  it,  as  was  the  deceased,  than  among  those 
not  so  exposed.  This  was  held  to  be  sufficient  to  justify  the  com- 
mission's  finding  that  the  injury  arose  out  of  the  employment.33 

§  339.  Insanity. — An  employee  was  injured  in  the  course  of 
his  employment  so  that  he  was  no  longer  able  to  follow  his  trade 
of  boiler  maker,  but  was  capable  of  earning  laborer's  wages.  He 
subsequently  became  insane.  The  court  held  that  the  employee 
was  entitled  to  compensation  for  the  partial  disability  caused  by 
the  accident  arising  out  of  the  employment,  saying:  "We  are  of 
opinion  that  subsequent  insanity  does  not  deprive  an  employee  of 
compensation  due  him  under  the  provisions  of  the  workmen's 
compensation  act.  Indeed  the  effect  of  subsequent  insanity  and 
the  only  effect  of  it  is  to  make  greater  the  employee 's  need  to  have 
that  compensation  which,  apart  from  the  subsequent  disability, 
justice  required  the  employer  to  pay  him."34 

An  employee  became  insane  subsequent  to  an  injury  arising 
out  of  the  employment,  because  of  a  syphlitic  condition  existing 
prior  to  the  injury.  It  was  contended  that  there  was  no  causal 
connection  between  the  injury  and  the  insanity.  The  court  held 
that  the  insanity  was  proximately  due  to  the  accident.  See  quota- 
tion from  the  opinion  in  this  case,  "Insanity,"  §  210  ante  note 
85.85 

33.  City  etc.  of  San  Francisco  v.  Indus.  A.   C.  of  Cal.,  —  Cal.  —  191 
Pac.  26;     Engels   Copper   Mng.  Co.  v.  Ind.  Comm.    of  Calif.,  —  Cal.  — , 
192   Pac.   845,  6  W.   C.  L.  J.  624. 

34.  In  re  Walsh,  227   Mass.  341,  116  N.  E.  496,  15  N.  C.  C.  A.  345. 

35.  In  re  Crowley,  223  Mass.  288,  111  N.  E.  786,  15  N.  C.  C.  A.  345. 

846 


ACCIDENT  ARISING   OUT  OP   COURSE  OP  EMPLOYMENT.      §    340 

A  motorman,  as  the  result  of  a  collision,  received  a  shock,  which 
caused  insanity.  It  was  held  that  the  insanity  was  due  to  the  acci- 
dent arising  out  of  the  employment.39 

§  340.  Intoxication. — An  ice  wagon  driver  asked  to  be  relieved 
from  his  duties  because  he  was  too  drunk  to  finish  the  deliveries. 
Another  employee  was  sent  out,  and  decedent  started  for  home. 
Later  another  employee  coining  from  a  small  building  on  the  deck 
said  that  he  saw  a  pair  of  feet  disappearing  over  the  edge  of  the 
dock.  Later  in  the  day  the  body  of  decedent  was  taken  from  the 
river.  The  state  industrial  commission  found  that  death  was  due 
solely  to  intoxication.  In  affirming  the  award,  the  court  said: 
"Section  21  of  the  "Workmen's  Compensation  Law  (Consol.  Laws, 
c.  67)  provides  that,  in  the*  absence  of  substantial  evidence  to  the 
contrary,  it  shall  be  presumed  that  'the  injury  did  not  result  solely 
from  the  intoxication  of  the  injured  employe  while  on  duty,'  but 
in  this  case  there  was  such  substantial  evidence.  Indeed,  the  evi- 
dence was  preponderating  that  the  decedent  was  staggering  drunk 
at  the  very  time  of  the  accident,  and  all  of  the  known  facts  point 
to  this  as  the  proximate  cause  of  the  death.  "ST 

A  janitor  was  found  at  the  bottom  of  a  stairs  with  his  skull 
fractured,  from  which  he  died.  There  was  evidence  that  on  the 
evening  in  question  he  was  sober.  It  was  sought  to  show  that  de- 
ceased was  a  habitual  drunkard,  and  that  he  came  to  the  building 
drunk  on  the  evening  in  question.  The  court  held  that  the  finding 
of  fact  was  within  the  province  of  the  board  and  it  would  not  be 
disturbed.  Therefore  a  finding  that  the  death  was  due  to  an 
accident  arising  out  of  the  employment,  was  affirmed." 

36.  McMahon  v.  Interborough  Rapid  Transit  Co.,  5  N.  Y.  S.  Dep.  371. 
Note:    see  §  210  ante. 

37.  Trouton  v.  Sheehy  Ice  Co.,  (1919),  187  App.  Div.  818,  176  N.  Y.  S. 
45,  4  W.  C.  L.  J.  292;    In  re  Joseph  Culberson,  2nd  A.  R.  U.  S.  C.  C.  224; 
In  re  Geo.  W.  Seegers,  2nd  A.  R.  U.  8.  C.  C.  224;  In  re  Pope,  163  N.  Y.  S. 
655,  B.  1  W.  C.  L.  J.  1389. 

38.  Lefens  v.  Indus.  Comm.,  286   111.  32,  121   N.  E.  182,  3   W.  C.  L.  J. 
246;  Great  Lakes  Dredge  &  Dock  Co.  v.  Totzke,  —  Ind.  App.  — ,  (1919), 
121    N.   E.  675,   3  W.  C.  L.    J.  448;     State  v.    District  Court  of   Meeker 
County,  128  Minn.  221,  150  N.  W.  623;  Pierce  v.  Bekins  Van  and  Storage 
Co.,  —  la.  — ,  172  N.  W.  191,  4  W.  C.  L.  J.  78. 

847 


§  340  WORKMEN'S  COMPENSATION  LAW 

V 

A  hospital  employee,  whose  duties  included  overseeing  of  several 
jobs,  was  found  at  the  bottom  of  a  flight  of  stairs  with  injuries 
which  resulted  in  his  death.  It  was  contended  that  the  death  was 
not  due  to  an  accident,  but  to  intoxication.  The  court  on  appeal, 
in  affirming  an  award,  said;  "The  finding  that  the  deceased  was 
not  so  intoxicated  as  to  take  him  out  of  the  course  of  his  employ- 
ment, and  that  the  injury  causing  his  death  did  not  result  directly 
from  his  intoxciated  condition,  must  be  sustained.  If  he  had  been 
in  such  a  state  of  intoxication  as  to  totally  incapacitate  him  from 
performance  of  his  work  the  injury  and  death  might  properly  be 
said  to  arise  out  of  his  condition  rather  than  his  employment.  Be- 
fore drunkenness  can  be  said  to  bar  a  recovery  under  the  Work- 
men's Compensation  Act  the  employee  must  be  so  intoxicated,  as 
shown  by  the  evidence,  that  the  court  can  say,  as  matter  of  law,  that 
the  injury  arose  out  of  his  drunken  condition,  and  not  out  of  his 
employment.  Frith  v.  Owners  of  Steamship  Louisiana,  2  K.  B. 
155;  5  B.  W.  C.  C.  410;  0 'Brian  v.  Star  Line,  45  Scotch  L.  T, 
935,  1  B.  W.  C.  C.  177.  When  ever  an  employee  is  so  drunk 
and  helpless  that  he  can  no  longer  follow  his  employment,  he  can- 
not be  said  to  be  engaged  in  his  employment,  and  when  injured 
while  in  that  condition  his  injury  does  not  arise  out  of  his  em- 
ployment. But  intoxication  which  does  not  incapacitate  the  employe? 
from  following  his  occupation  is  not  sufficient  to  defeat  the  re- 
covery of  compensation,  although,  the  intoxication  may  be  a  contri- 
buting cause  of  his  injury.  Our  statute  was  not  designed  to  make 
contributory  negligence  of  the  employee1,  or  a  defense  of  that 
nature,  a  bar  to  his  recovery  under  the  Workmen's  Compensation 
Act,  where,  as  in  this  case,  his  injury  arose*  out  of  and  in  the  course 
of  his  employment.  Alexander  v.  Industrial  Bd.,  281  111.  201,  117 
N.  E.  1040. "39 

Where  a  night  watchman,  when  intoxicated,  left  his  work  and 
went  to  a  room  with  intent  to  sleep,  lighted  a  gas  heater,  closed 
the  door  and  windows,  and  laid  down  on  a  bench,  where  he  was 
asphyxiated  by  gas,  it  was  held,  on  appeal  from  the  award  of  the 

39.  Hahnemann  Hospital  v.  Indus.  Bd.  of  111.,  282  111.  316,  118  N.  E. 
767,  1  W.  C.  L.  J.  754 ;  Hartford  Indem.  Co.  v.  Durham,  —  Tex.  Civ.  App. 
— ,  (1920),  222  S.  W.  275,  6  W.  C.  L.  J.  395. 

848 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.        §    340 

commission,  that  the  death  was  not  due  to  any  accident  incident 
to  the  employment  or  arising  out  of  the  employment.  The  court 
said:  "And  we  may  remark  that  the  uncontradicted  evidence  in 
this  case  indicates,  if  we  are  to  choose  between  the  conflicting  specu- 
lative deductions,  that  on  the  night  in  question  the  deceased  will- 
fully stepped  aside  from  the  performance  of  the  duties  which  his 
employment  laid  upon  him  and  invited  by  direct  action  on  his 
part  the  occurrence  of  the  detrimental  causes  which  produced 
his  death.  In  our  opinion,  the  conclusion  of  the  commission  is  not 
supported  by  sufficient  evidence."40 

Where  the  evidence  showed  a  conflict  in  the  testimony  as  to 
whether  or  not  deceased  was  intoxicated  at  the  time  of  the  injury, 
it  was  held  that  it  was  not  error  to  fail  to  find  that  deceased  was 
intoxicated,  for  such  ruling  was  necessarily  included  in  a  finding 
that  the  accident  arose  out  of  the  employment.41 

"Defendants  insist  that  the  injury  sustained  by  Nels  Parson 
was  due  to  his  willful  negligence  and  to  intoxication.  The  act 
expressly  provides  that  the  burden  of  proof  to  establish  willful 
negligence  on  the  part  of  an  injured  employee  is  on  the  defendant. 
In  the  present  case  defendants  introduced  no  testimony,  and  there 
is  no  proof  of  such  negligence  before  us.  Some  testimony  was 
brought  out  on  cross-examination,  showing  that  plaintiff's  son 
was  intoxicated  to  some  extent  when  he  was  injured ;  but  it  is  no- 
where shown  that  his  intoxication  in  any  way  contributed  to  his 
injury,  and  without  proof  we  will  not  assume  that  it  did."42 

The  court,  in  a  Massachusetts  case,  in  passing  upon  the  question 
of  intoxication  as  a  defense,  said:  ""Where,  therefore,  the  intoxi- 
cation of  the  injured  employee  is  relied  on  as  a  defense,  it  must 
be  made  to  appear  that  the  injury — that  is  to  say,  the  accident 
which  resulted  in  the  injury  for  which  compensation  is  sought — was 

40.  Roebling  Sons  &  Co.  v.  Indus.  Comm.  36  Cal.  App.  10,  171  Pac.  987, 
2  W.  C.  L.  J.  38;    In  re  Gilbert,  14  Ohio  Law  Rep.  164,  13  N.  C.  C.  A.  497. 

41.  Napoleon  v.  McCullough,  89  N.  J.  L.  716,   99  All.  385,   16  N.  C.  C. 
A.  754. 

42.  Parson  v.  Murphy,  101  Neb.  542,  163  N.  W.  847.  16  N.  C.  C.  A.  174; 
National  Council  of  Knights  and  Ladies  of  Security  v.  Wilson,   147  Ky. 
296,  143  S.  W.  1000;  Hartford  Ace.  and  Indem.  Co.  v.  Durham,  —  Tex. 
Civ.  App.  — ,  (1920),  222  S.  W.  395,  6  W.  C.  L.  J.  275. 

849 
W.  C.— 54 


§  341  WORKMEN'S  COMPENSATION  LAW 

caused  solely  and  exclusively  by  the  intoxication  of  such  em- 
ployee. '  '43  » 

Where  the  employee  had  no  intention  of  becoming  dangerously 
and  helplessly  intoxicated,  he  is  not  necessarily  barred  from  com- 
pensation, even  though  the  injury  was  proximately  caused  by  the 
intoxication.  It  did  not  constitute  wilful  misconduct  within  the 
meaning  of  the  Wisconsin  Act.44 

It  is  serious  and  wilful  misconduct  for  a  man  to  be  drunk  at  his 
work,  under  the  English  Act,  but  where  death  ensues,  the  fact 
that  decedent  was  intoxicated  may  be  disregarded  when  considering 
whether  the  accident  arose  out  of  the  employment.45 

Where  habitual  intoxication  so  weakens  the  system  that  it  is  un- 
able to  withstand  the  effects  of  an  accidental  injury  arising  out 
of  the  employment,  "this  fact  does  not  shift  the  proximate  cause  of 
death  from  his  injury  to  his  intemperate  habits.  So  where  an 
employee  developed  delerium  tremens  and  died  following  an  in- 
jury, it  was  held  that  the  death  was  due  to  the  accident  arising 
out  of  the  employment.46 

Where  an  employee  was  taken  to  the  entrance  of  a  garage  and 
told  to  go  home  because  he  was  too  intoxicated  to  work,  and  was 
later  found  fatally  injured  in  an  elevator  shaft,  his  injury  did 
not  arise  out  of  the  employment.47 

§  341.  "Ivy  Poisoning". — A  section  hand,  who  was  cutting 
grass  and  removing  poison  ivy  and  other  weeds  from  along  the 

43.  American  Ice  Co.  v.  Fitzhugh,  128  Md.   382,   97  All.  999,  14   N.  C. 
C.  A.  291;   Collins  v.  Cole,  40  R.  I.  66,  99  Atl.  830,  14  N.  C.  C.  A.  290;    In 
re  Pope,  163  N.  Y.  S.  655,  14  N.  C.  C.  A.  293;    Mclntyre  v.  Stewart,  (1915), 
W.  C.  &  Ins.  Rep.  550;    Frith  v.  Louisiana,  (1912),  2  K.  B.  155,  9   N.  C. 
C.  A.  262,  (1912),  W.  C.  Ins.  Rep.  285,  81  J.  K.  B.  701;  Murphy  &  Sandwith 
v.  Cooney,  (1914),  2  Ir.  R.  76,  9  N.  C.  C.  A.  263,  (1914),  W.  C.  &  Ins.  Rep. 
44,  48  Ir.  L.  T.  R.  13;  In  re  Von  Etta,  223  Mass.  56,  111  N.  B.  696. 

44.  Nekoosa-Edwards    Paper  Co.  v.    Indus.  Comm.,  154  Wis.  105,  141 
N.  W.  1013,  3  N.   C.   C.  A.  661. 

45.  Williams  v  Llandudno  Coaching  Co.  Ltd.,  (1915),  2  K.  B.  101,  9  N. 
C.  C.  A.  245. 

46.  Ramlow  v.  Moon  Lake  Ice  Co.,  192  Mich.  505,  158  N.  W.  1027,  14 
N.  C.  C.  A.  295;    Connell  &  Co.  v.  Barr,  116   L.   T.  127   (1904). 

47.  Emery  Motor  Livery   Co.  v.  Indus.  Comm.,  —  111.  — ,    (1920),   126 
N.  E.  143,  5  W.  C.  L.  J.  658. 

850 


ACCIDENT   ARISING   OUT  OP  COURSE  OP  EMPLOYMENT.      §   343 

right  of  way  of  an  intrastate  railroad,  contracted  ivy  poisoning, 
resulting  in  blood  poisoning  and  death.  It  was  held  that  death 
was  due  to  an  accident  arising  out  of  the  employment.48 

§  342.  Landslides  &  Snowslides. — A  conductor  was  killed  by 
a  landslide,  when  he  attempted  to  pass  the  slide  in  an  endeavor 
to  report  the  arrival  of  his  train  at  the  point  where  the  track 
was  blocked.  It  was  held  that  the  accident  arose  out  of  the  em- 
ployment.49 

Where  an  employee  of  a  Colliery  Company  in  a  mountainous 
district  was  killed  by  a  snowslide,  which  was  caused  by  very  ab- 
normal weather  conditions,  it  was  held  under  the  British  Columbia 
Act  that  the  death  was  due  to  an  accident  which  arose  out  of  and 
in  the  course  of  the  employment.50 

§  343.  Lightning. — Deceased  was  employed  by  defendant,  in 
Colt  park,  in  the  City  of  Hartford,  in  raking  leaves.  During  a 
thunderstorm  of  considerable  violence  he  took  shelter  under  a  near- 
by tree.  While  thus  seeking  shelter  the  tree  was  struck  by  light- 
ning and  he  was  killed.  There  was  no  protection  provided  for 
him  in  case  of  storms.  The  court,  in  holding  that  the  death  was 
due  to  an  accident  arising  out  of  the  employment,  said:  "There 
is  a  clear  preponderance  of  scientific  authority  to  the  effect  that 
there  is  a  greater  danger  under  a  tree  or  in  the  open  than  when 
protected  in  a  house.  This  is  shown  by  statistics  and  by  authori- 
tative scientific  dicta  Notice  is  taken  of  the  commonly  known 
fact  that  nearly  all  of  the  persons  in  a  community  such  as  Hart- 
ford are  protected  by  dwelling  houses,  business  blocks,  or  factories 
in  time  of  a  violent  thunder  shower,  and  that  the  injured  work- 
man was  subject  to  a  greater  hazard  than  that  experienced  by  the 
community  at  large.  *  *  * 

"If  the  place  under  the  tree  were  the  more  dangerous,  the  fact 
that  the  deceased  chose  it  as  the  place  of  refuge  from  the  storm 

48.  Plass  v.  Central  New   England  R.  Co.,    169  N.  Y.   App.   Div.  825, 
155  N.  Y.   Supp.   854,  11  N.  C.   C.  A.  498. 

49.  Clark  v.   Northwestern  Pacific  R.  R.  Co.,   1  Cal.  I  A.  C.  (part  2) 
191,  7  N.  C.  C.  A.  429. 

50.  Culshaw   v.  Crow's  Nest  Pass  Coal   Co.,  (1914),  British  Columbia 
«  ourt  of  Appeal,  7  B.  W.  C.  C.  1050. 

851 


§•  343  WORKMEN'S  COMPENSATION  LAW 

and  that  he  was  injured  at  this  place  does  not  prevent  recovery. 
The  act  of  seeking  and  obtaining  shelter  arose  out  of,  that  is, 
was  within,  the  scope  or  sphere  of  his  employment  and  was 
a  necessary  adjunct  and  an  incident  to  his  engaging  in  and 
continuing  such  employment.  Obtaining  shelter  from  the  vio- 
lent storm  was  not  only  necessary  to  the  preservation  of  the 
deceased's  health,  and  perhaps  his  life,  but  was  incident  to 
the  deceased's  work,  and  was  an  act  promoting  the  business 
of  the  master.  L.  R.  A.  1916A,  348.  See,  also,  Richard  v.  Indi- 
anapolis Abattoir  Co.,  92  Conn,  277,  102  Atl.  604,  where  it  is  said 
that — The  plaintiff  'was  injured  while  on  duty,  in  his  working 
hours,  when  waiting  for  an  opportunity  to  continue  his  service  of 
empolyment.  The  accident  occurred  when  the  plaintiff  was  at  a 
place  where  he  might  reasonably  be.  There  was  no  turning  aside 
upon  his  part,  no  attempt  to  serve  ends  of  his  own. ' 

"A  personal  injury  to  an  employee  which  is  sustained  while  he  is 
doing  what  he  was  employed  to  do,  and  as  a  proximate  result  there- 
of, 'arises  out  of  and  in  the  course  of  his  employment.  An  injury 
which  is  the  natural  and  necessary  incident  of  one's  employment 
is  proximately  caused  by  such  employment :  as  it  is  also  when  the 
employment  carries  with  it  a  greater  exposure  to  the  injury  sus- 
tained than  the  exposure  to  which  persons  generally  in  that  local- 
ity are  subjected."51 

An  employee,  while  operating  a  metal  road  grader,  was  killed 
by  lightning  during  a  storm.  The  District  court,  in  reversing  the 
action  of  the  board,  granted  compensation  on  the  theory  that  de- 
ceased's employment  exposed  him  to  a  greater  risk  than  that  of  the 
commonalty.  On  appeal  this  decision  was  reversed,  the  court  say- 
ing: "The  most  diligent  research  on  our  part  has  failed  to  dis- 
close any  authority  which  supports  the  theory  upon  which  this 
cause  was  decided  by  the  court  below;  on  the  contrary,  so  far  as 
they  point  to  any  conclusion  respecting  the  subject,  the  authorities 
indicate  quite  clearly  that  the  presence  of  the  metal  road  grader 
could  not  have  had  any  perceptible  influence  upon  the  lightning, 

51.  Chiulla  De  Luca  v.  Board  of  Park  Commissioners  of  the  City  ot 
Hartford,  94  Conn.  --,  (1919),  107  Atl.  611,  4  W.  C.  L.  J.  595;  State  ex 
rel.  Peoples  Coal  &  Ice  Co.,  v.  District  Court  of  Ramsey  Co.,  129  Minn. 
592  153  N.  W.  119,  9  N.  C.  C.  A.  129. 

852 


ACCIDENT   ARISING   OUT  OP  COURSE  OP  EMPLOYMENT.      §   343 

and  did  not  tend  to  increase  the  natural  hazard  of  the  deceased's 
employment.  For  this  reason  it  cannot  be  said  from  this  record 
that  his  death  resulted  from  an  accident  arising  out  of  his  em- 
ployment, as  the  term  is  used  in  our  workmen's  compensation 
act."83 

Where  a  workman  on  a  dam  was  struck  by  lightning  during  a 
storm,  the  court,  in  denying  that  the  nature  of  deceased's  employ- 
ment exposed  him  to  any  unusual  hazard  not  common  to  the  public, 
said:  "The  court  below  in  affirming  the  findings  of  the  Industrial 
Commission,  held  that  the  Workmen's  Compensation  Act  'limits 
compensation  to  those  cases  in  which  the  accident  grows  out  of 
the  hazards  of  industrial  enterprises  and  is  peculiar  to  such  enter- 
prises,' and  further  held  that  'an  injured  employee  is  entitled 
to  compensation  when  the  industry  combines  with  the  elements 
in  producing  an  injury  by  a  lightning  stroke,'  and  further  found 
that  it  could  not  be  said  that  there  was  not  a  substantial  basis 
for  the  finding  in  the  evidence  taken  before  the  commission.  We 
are  inclined  to  agree  with  the  learned  court  below  in  its  conclusions 
and  judgment  in  the  case.  There  was  testimony  in  this  case  of  an 
expert  nature  for  the  purpose  of  showing  that  the  employment  of 
deceased  at  the  water's  edge  was  peculiarly  dangerous  from  ex- 
posure to  lightning.  The  evidence  does  not  convince  the  Com- 
mission to  a  moral  certainty  that  the  employment  was  extrahazard- 
ous  in  this  regard.  It  is  admitted  that  the  action  of  lightning  is 
extremely  freakish;  and,  while  it  is  more  or  less  controlled  by 
general  law,  there  are  so  many  different  elements  entering  into 
its  control  that  we  do  not  think  the  evidence  in  this  case  established 
that  the  deceased  was  in  any  position  of  exceptional  danger  be- 
cause of  the  possibilities  of  lightning  stroke."58 

Where  a  bricklayer  was  killed  by  lightning  while  at  work  on  a 
scaffold  23  feet  above  the  level  of  the  ground,  the  court,  in  allow- 

62.  Wiggins  v.  Indus.  Ace.  Bd.,  54  Mont.  335,  170  Pac.  9,  1  W.  C.  L.  J. 
643,  15  N.  C.  C.  A.  696;  Craske  v.  Wlgan,  (1909),  100  L.  T.  8,  2  B.  W. 
C.  C.  35. 

53.  Hoenlg  v.  Indus.  Comm.  of  Wis.,  159  Wis.  646,  150  N.  W.  996,  8 
N.  C.  C.  A.  192;  Kelley  v.  Kerry  County  Council,  42  Ir.  L.  T.  23,  1  B.  W. 
C.  C.  194,  8  N.  C.  C.  A.  194;  Thier  v.  Widdifleld.  —  Hich.  — ,  (1920).  178 
N.  W.  16,  6  W.  C.  L.  J.  339. 

853 


§•  344  WORKMEN'S  COMPENSATION  LAW 

ing  compensation  and  holding  that  death  was  due  to  an  accident 
arising  out  of  the  employment,  said:  "If  I  come  to  the  conclusion 
that,  as  a  matter  of  fact,  the1  position  in  which  the  man  was  work- 
ing was  dangerous,  and  that  in  consequence  of  the  dangerous  posi- 
tion the  accident  occurred,  I  could  fairly  hold  that  the  accident 
arose  out  of  the  employment,  Now,  was  it  a  dangerous  position? 
"Was  the  man  exposed  to  something  more  than  the  normal  risk 
which  everbody,  so  to  speak,  incurs  at  any  time  and  in  any  place 
during  a  thunderstorm?  We1  know  that  lightning  is  erratic,  and 
possibly  no  position  and  circumstances  can  afford  absolute  safety. 
But,  if  there  is  under  particular  circumstances  in  a  particular  vo- 
cation something  appreciably  and  substantially  beyond  the  ordinary 
normal  risk,  which  ordinary  people  run,  and  which"  is  a  necessary 
concomitant  of  the  occupation  the  man  is  engaged  in,  then  I  am 
entitled  to  say  that  that  extra  danger  to  which  the  man  is  exposed 
is  something  arising  out  of  his  employment."54 

Under  the  Utah  Act,  which  does  not  require  the  accident  to 
arise  out  of  the  employment,  an  employee,  struck  by  lightning 
when  he  left  his  employment  of  roadwork  to  seek  shelter,  was 
entitled  to  compensation,  for  the  injury  occurred  in  the  course 
of  the  employment,  since  the  employee  did  not  depart  therefrom 
but  was  justified  in  seeking  shelter  from  the  fury  of  the1  elements.55 

Where  a  section  hand  at  the  direction  of  his  foreman  sought 
shelter  in  a  barn  during  a  storm,  and  was  killed  by  lightning, 
the  court  held  that  the  nature  of  his  employment  did  not  subject 
him  to  any  greater  risks  than  the  risks  of  the  ordinary  citizenry, 
and  held  that  the  accident  did  not  arise  out  of  the  employment.56 

§  344.  Mental  Shock. — Where  an  employee  received  a  personal 
injury  arising  out  of  the  employment  resulting  in  total  disability, 
and  it  was  contended  that  his  disablity  was  due  to  a  mental  and 

54.  Andrew  v.  Failsworth  Indus.   Society  Ltd.,    (1904),  2  K.  B.32,  73 
L.  J.  K.  B.  510,  90  L.   T.  611,   20  T.  L.  R.  429,   68   J.   P.  409,  52  W.  R.  451, 
6  W.  C.  C.  11,  8  N.  C.  C.  A.  192. 

55.  State  Road  Comm.  v.  Indus.  Comm.,  —  Utah,  — .   (1920),  190  Pac. 
544,  6  W.  C.  L.  J.    404;    In  re  Jimmie  Butte,  3rd  A.  R.  U.  S.  C.  C.  169. 

56.  Klaviniski  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  —  Mich.  — ,  152  N.  W. 
213,  8  N.  C.  C.  A.  194. 

854 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT        §   345 

nervous  condition  instead  of  a  physical  breakdown,  the  court  said : 
"The  fact  that  appellee  was  suffering  from  a  mental  or  nervous 
condition  resulting  from  a  physical  injury,  rather  than  from  the 
physical  injury  itself,  cannot  have  the  effect  of  relieving  appellant 
from  liability.  The  court  is  committed  to  the  doctrine1  that  a  'per- 
sonal injury,'  as  that  term  is  used  in  the  Workmen's  Compensation 
Act,  has  reference1  not  merely  to  some  break  in  some  part  of  the 
body,  or  some  wound  thereon  or  the  like,  but  also  to  the  consequence 
or  disability  that  results  therefrom."67 

Where  an  employee,  while  aiding  in  the  rescue  of  fellow  employ- 
ees, many  of  whom  were  killed  in  an  accident,  became  insane,  due 
to  the  mental  and  emotional  shock  caused  by  the  accident,  it  was 
held  that  the  insanity  was  due  to  an  accident  arising  out  of  tho 
employment.68 

Where  an  employee  fell  from  a  scaffold  injuring  himself,  from 
which  he  became  subject  to  nervousness,  the  court  held  that  the 
nervousness  was  due  to  an  accident  arising  out  of  the  employment." 

An  elevator  operator,  imagining  he  saw  a  fellow  workman  about 
to  be  killed,  suffered  a  stroke  of  paralysis,  which  caused  his  death. 
It  appeared  that  the  paralysis  was  due  to  a  hemmorrhage  of  the 
brain  which  might  have  been  caused  by  a  diseased  condition  of  tne 
heart  or  by  the  mental  shock  arising  from  the  exictement.  It  was  held 
that  such  evidence  was  insufficient  to  prove  that  the  paralysis  and 
death  was  due  to  an  accident  arising  out  of  the?  employment.59 

§  345.  Misunderstood  Orders. — A  woodsman  misunderstood 
his  instructions  and  worked  at  the  wrong  place.  Upon  discovering 
his  mistake,  he  went  to  the  proper  place  and  worked  so  hard  in 
preparing  for  the  drive,  whicli  was  to  occur  on  the  following  day, 
that  his  feet  perspired  and  were  frozen.  On  appeal  the  court, 
in  holding  that  the  freezing  of  his  feet  was  due  to  an  accident 
arising  out  of  the  employment,  said:  "On  the  day  in  question 

67.  Kingan  &  Co.,  Ltd.  v.  Issam,  (Ind.  App.),  in  N.  T.  289,  3  W.  C. 
L.  J.  276. 

58.  Indus.  Ace.  Comm.  in  Reich  v.  City  of  Imperial,  1  Cal.  Ind.  Ace. 
Comm.  Dec.,  (1914),  337,  10  N.  C.  C.  A.  479. 

58.  Keck  v.  Morehouse,  2  Cal.  I.  A.   C.   311. 

59.  Coslett  v.  Shoemaker,  38  N.  J.  L.  J.  116,  10  N.  C.  C.  A.   1046. 
See  §  218  ante. 

855 


§•  345  WORKMEN'S  COMPENSATION  LAW 

by  reason  of  the  mistake,  the  defendant  Beaulieu  worked  harder 
then  he  ordinarily  did,  as  a  result  of  which  his  feet  became  wet 
from  perspiration,  a  circumstance  which  made  them  more  sus- 
ceptible to  cold,  and  as  a  consequence  thereof  his  feet  were  frozen. 
It  seems  clear  that  the  hazard  to  which  the  defendant  Beaulieu 
was  exposed  was  one  which  was  incident  to  and  can  be  fairly 
traced  to  his  employment  as  a  contributing  cause,  and  that  he 
would  not  have  been  equally  exposed  to  such  a  hazard  apart  from 
his  employment.  If  the  defendant  Beaulieu  while  engaged  in  his 
work  had  wet  his  feet  by  stepping  into  an  open  spring  and  the  freez- 
ing had  resulted  therefrom,  it  could  scarely  be  claimed  that  the  in- 
jury was  not  proximately  caused  by  accident.  In  this  case  the 
condition  of  his  feet  was  due  to  extra  exertion  caused  by  reason  of  a 
misunderstanding  as  to  orders.  Because  there  would  be1  no  logs  for 
hauling  in  the  morning,  he  was  required  to  put  forth  an  unusual 
and  extra  effort,  which  made  him  more  susceptible  to  cold  than 
he  otherwise  would  have  been.  It  is  clear  that  the  exposure  of 
the  defendant  Beaulieu  to  injury  by  freezing  was  substantially 
increased  by  reason  of  the  nature  of  the  services  which  he  was 
obliged  to  render.  We  think  it  must  be  held  that  the  injury 
for  which  compensation  was  awarded  was  proximately  caused  by 
accident  within  the  meaning  of  the1  act.  "61 

Claimant  sustained  a  burn  in  the  course  of  and  arising  out  of 
the  employment.  He  visited  a  doctor,  and  on  the  day  of  his  last 
visit,  his  burned  hand  showed  signs  of  improvement,  and 
he  did  not  return  for  further  treatment  until  the  finger  had 
nearly  rotted  off.  The  physician  testified  that  he  told  claimant 
to  return  for  further  treatment  and  claimant  testified  that  he 
was  told  not  to  return.  The  court  held  that,  in  view  of  the  fact 
that  claimant  was  a  foreigner  and  did  not  understand  the  English 
language  to  any  extent,  he  was  not  guilty  of  such  wilful  miscon- 
duct as  would  preclude  a  recovery.62 

An  oiler  was  told  not  to  allow  oil  to  drop  on  a  pulley  of  a 
particular  machine*  and  not  to  put  so  much  oil  on  the  machine; 

61.  Ellingson  Lbr.  Co.  v.  Indus.  Comm.  of  Wis.,  168  Wis.  227,  169  N. 
W.  568,  3  W.  C.  L.  J.  215,  17  N.  C.  C.  A.  1003. 

62.  Oniji  v.  Studebaker  Corporation,  196  Mich.   397,  163  N.  W.   23,  15 
N.  C.  C.  A.  76;  Poniatowski  v.  Stickley  Bros.  Co.,  194  Mich.  294,  160  N. 
W.  669,    15  N.  C.    C.  A.  77. 

856 


ACCIDENT  ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §    346 

but  the  oiler  through  a  misunderstanding  or  otherwise,  hung  a 
pail  to  catch  the  dripping  oil  and  was  injured  while  removing 
the  pail.  It  was  held  that  the  injury  arose  out  of  the  employment.83 
Where  a  deaf  employee  misunderstood  orders  as  to  where  his 
work  was  to  be  performed  and  went  to  a  different  place  with  the 
approval  of  his  fellow  workmen,  an  injury,  sustained  there  while 
doing  the  exact  work  he  had  been  instructed  to  do,  arose  out 
of  his  employment.64 

§  346.  Neurosis. — That  the  workman,  but  for  the  want  «>f 
sufficient  will  power,  could  have  thrown  off  the  condition  of 
hysterical  blindness  and  neurosis  caused  by  the  injury,  did  not 
deprive  him  of  his  right  to  compensation.05 

Where  a  workman  receives  a  blow  on  the  head,  causing  no 
apparent  serious  injury,  but  inducing  him  to  sincerely  believe 
that  he  is  incurably  injured,  which  belief  incapacitates  him,  the 
incapacity  is  an  injury  for  which  compensation  will  be  allowed.66 

Where  a  workman,  after  the  effects  of  the  injury  are  all  gone, 
still  suffers  from  traumatic  neurosis,  he  is  entitled  to  compensation 
until  the  traumatic  neurosis  ceases  to  incapacitate  him.67 

Where  a  workman,  after  his  injuries  have  healed,  complains 
of  pain,  loses  weight  and  gradually  becomes  an  invalid,  due  to 
traumatic  neurosis,  although  there  is  no  physical  basis  for  such  con- 
dition, it  is  held  that  he  is  entitled  to  compensation.68 

Where  disability  of  a  workman  was  due  largely  to  imagination 
aud  a  slight  neurotic  condition,  which  would  best  be  cured  by 
claimants  return  to  work,  the  court  made  an  award  of  six  weeks 
compensation  in  addition  to  the  twenty -six  weeks  that  had  already 
been  paid  by  the  employer.68 

63.  Panacona  v.  Vulcanite  Portland  Cement  Co.,  37  N.  J.  L.  J.  75. 

64.  In  re  Greeney,  —  App.  Div.  — ,  (1920),  180  N.  Y.  S.  648,  5  W.  C.  L. 
J.  723. 

65.  In  re  Hunnewell,  220  Mass.  351,  107  N.  E.  934. 

66.  Rollnik  v.   Lankershim,  1  Cal.  I.   A.  C.  45. 

67.  Manfred!  v.  Union  Sugar  Co.,  2  Cal.  I.  A.  C.  20. 

68.  Hakala  v.   Jacobsen-Bade  Co.,   1  Cal.  I.  A.  C.  328;    Kelly  v.   Par. 
Electric  Ry.  Co.,  1  Cal.  I.  A.  C.  150. 

69.  Intorigne  v.  Smith  £  Cooley,  1  Conn.  Comp.  228;  Pendo  v.  Mam- 
moth Copper  Mining  Co.,  1  Cal.  I.  A.  C.  80. 

857 


§  347  WORKMEN'S  COMPENSATION  LAW 

A  cigar  maker,  by  reason  of  his  occupation,  received  a  personal 
injury  due  to  the  unusual  degree  of  strain  on  certain  muscles  in 
his  arm,  and  also  to  the  rapidity  with  which  he  used  them,  which 
caused  a  condition  of  neurosis  incapacitating  him  for  labor.  The 
commission  held  that  the  incapacity  was  the  result  of  an  accidental 
injury.70 

Where  an  injury  caused  the  loss  of  will  power,  due  to  traumatic 
neurosis,  whereby  claimant  was  unable  to  work,  the  court  found 
that  he  was  entitled  to  compensation  for  such  disability71 

§  347.  Paralysis. — An  employee  sustained  a  blow  on  the  neck 
from  a  .shovel.  A  state  of  paralysis  followed.  The  Commission 
arrived  at  the  following  conclusion,  and  their  award  was  affirmed 
by  the  higher  court,  which  quoted  from  their  decision  as  follows : 
'In  view  of  the  extreme  hot  weather,  age  of  the  applicant,  and 
the  obvious  susceptibility  of  applicant  to  suffer  a  paralytic  stroke 
at  the  time  of  the  accident,  the  fact  that  no  evidence  of  sickness 
or  distress  was  apparent  immediately  before  the  blow,  that  a 
strange  feeling,  sickness,  and  a  paralytic  stroke  developed  in  usual 
time  immediately  following  the  blow,  it  is  reasonable  to  conclude 
that  the  blow  from  the  shovel,  received  accidentally  and  arising  out 
of  and  in  the  course  of  his  employment  by  the  defendant  corpora- 
tion, was  the  proximate  cause  of  the  disability  suffered  by  ap- 
plicant, and  an  award  of  compensation  should  be  made  accord- 
ingly."72 

It  was  held  that  where  an  employee's  duties  exposed  him  to  un- 
usual risk  from  the  sun's  heat  and  he  suffered  a  sunstroke'  which 
caused  paralysis  of  the  brain  and  death,  that  the  paralysis  and 
death  was  due  to  an  accident  arising  out  of  the  employment.7'1 

70.  Lee  v.  Employers    Liability  Assur.    Corp.,  2    Mass.  Work.   Comp. 
Cases,  753. 

71.  Smith  v.    Smith   (Globe   Indemnity  Co.),    2  Conn.  Workm.  Comp. 
Com.  628. 

Note:  See  "Mental  Shock,"  §  344,  also  "Insanity"  §  339. 

72.  Murray  City  v.  Indus.    Comm.  of  Utah,    (Utah),   (1919),    183  Pac. 
Rep.    331,  4  W.  C.  L.    J.  647. 

73.  Ahern  v.  Spier,  93  Conn.  151,  105  Atl.  340,  3  W.  C.  L.  J.  221. 


858 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    348 

"Where  an  employee  \\a>  awarded  compensation  for  paralysis 
following  heavy  lifting,  but  it  appeared  that  the  board  based  its 
finding  on  a  previous  fall  received  by  the  employee,  the  court  on 
appeal  reversed  the  decision  on  the  ground  that  there  was  no 
showing  that  the  fall  was  received  in  the  course  of  the  employ- 
ment.74 

A  candy  packer,  whose  duties  necessitated  that  she  work  in  a 
cool  room,  suffered  from  facial  paralysis,  which  began  while  she 
was  at  work.  It  was  held  that  the  injury  was  received  in,  and 
arose  out  of  the  employee's  employment.75 

"Where  an  employee  sought  to  reach  his  place  of  employment  by 
a  very  dangerous  means  of  ingress,  instead  of  using  the  safe  way 
provided  by  the  employer,  and  fell,  sustaining  injuries  to  his 
back  and  paralysis,  the  court  held  that  he  was  not  acting  within 
the  scope  of  his  employment  and  that  his  injury  did  not  arise 
out  of  the  employment.76 

A  fireman,  while  attempting  to  move  heavy  iron  beams,  became 
faint  and  weak,  complaining  of  pains  in  his  stomach,  and  a  few 
days  later  suffered  a  paralytic  stroke.  It  was  held  that  the  paraly- 
tic stroke  was  due  to  an  accidental  injury  arising  out  of  the  em- 
ployment.77 

An  employee  who  had  previously  suffered  a  stroke  of  paralysis 
and  recovered  therefrom,  was  later  found  drowned  in  a  vat  on 
his  employer's  premises,  and  all  the  evidence  tended  to  show  that 
his  fall  into  the  vat  was  due  to  dizziness.  It  was  held  that  the  acci- 
dent arose  out  of  the  employment.78 

§  348.  Pneumonia. — A  driver  on  a  lumber  sleigh  suffered  an 
injury  while  lifting  the  end  of  the  sleigh.  Later  he  developed 

74.  David-Bradley   Mfg.  Co.    v.  Ind.  Bd.  of  111.,   2SZ  111.   468,  11C    N.  E. 
615,  2   W.  C.  L.  J.    226,  17  N.   C.  C.  A.    250. 

75.  Dalton  v.  Employer's  Liab.  Assur.  Corp.  Ltd.,  2  Mass.  W.  C.  C.  231, 
12  N.  C.  C.  A  327, 

76.  In   re  Babcock,   Ohio  Ind.  Comm:,  (1919),  12   N.  C.   C.  A.  655. 

77.  Manning  v.  Pomerene,  101  Neb.  127,  162  N.  W.  492. 

78.  Harmon  v.  Gen.  Ace.  Assur.  Corp.,  3  Mass.   Indus.  Ace.   Bd.  166. 
12  N.  C.  C.  A.  80, 

Note:    See  §  232  ante. 

859 


§  348  WORKMEN'S  COMPENSATION  LAW 

lobar  pneumonia,  and  traumatic  gangrene  of  the  lungs,  from  which 
he  died.  The  evidence  was  conflicting  as  to  whether  the  disease  was 
due  to  the  injury.  The  court  held  that  there  was  sufficient  evi- 
dence to  justify  a  finding  that  the  injury  produced-  an  impaired 
physical  condition  resulting  in  disease  and  death,  and  that  the 
death  was  attributable  to  the  injury  arising  out  of  the  employ- 
ment.79 

A  night  watchman  went  to  work  as  usual.  The  following 
morning  he  was  discovered  in  a  state  of  collapse.  He  developed 
pneumonia  and  peritonitis,  and  after  a  few  days  died.  It  was 
alleged  that  the  disease  was  due  to  an  injury  arising  out  of  and 
in  the  course  of  the  employment.  In  affirming  an  award  the 
court  said:  "The  defendants  deny  that  the  illness  and  death  of 
Mailman  was  due  to  an  injury,  accidental  or  otherwise.  They  argue 
that  when  he  began  work  on  the  evening  of  April  18th  he  was 
'coming  down'  with  pneumonia.  This  is  disputed.  If  true,  it 
is  not  decisive.  Evidence  that  an  existing  disorder  reaches  the 
point  of  disablement  during  employment,  of  course,  does  not  prove 
accidental  or  other  injury  arising  out  of  such  employment.  It  is 
sufficient  however  (assuming  other  elements  proved),  if  by  weak- 
ening resistance  or  otherwise  an  accident  so  influences  the  progress 
of  an  existing  disease  as  to  cause  death  or  disablement  Voorhees  v. 
Smith  86  N.  J.  Law,  500,  92  Atl.  280 ;  Trodden  v.  McLennard,  4  B. 
W.  C.  C.  190 ;  Doughten  v.  Hickman,  6  B.  W.  C.  C.  77 ;  Puritan  v. 
Wolfe  (Ind.  App.)  120  N.  E.  417.  'There  is  some  evidence  that 
upon  the  body  of  the  deceased  a  mark,  or  marks,  were  observed 
which  turned  black  when  blood  poisoning  set  in.  There  is  some 
medical  testimony  to  the  effect  that  the  symptoms  were  more  con- 
sistent with  traumatic  pneumonia  than  with  illness  otherwise 
caused.  The  spontaneous  exclamation  of  the  suffering  man,  'I 
got  hurt,'  clearly  admissible  for  this  purpose,  shows  that  what  he 
sensed  and  felt  was  the  shock  of  a  hurt  rather  than  the  prostration 
of  illness.  In  view  of  these  circumstances,  it  cannot  be  reasonably 
said  that  there  was  no  evidence  that  the  illness  of  the  deceased 

79.  Foils  v.  Robertson,  (1919),  188  App.  Div.  359,  177  N.  Y.  S.  34,  4 
W.  C.  L.  J.  429;  Tanner  v.  Aluminum  Castings  Co.,  —  Mich.  — ,  (1920), 
178  N.  W.  69,  6  W.  C.  L.  J.  337. 

860 


ACCIDENT   ARISING   OUT  OP  COUBSE  OP  EMPLOYMENT.      §   348 

was  traumatic.  There  being  no  evidence,  suggestion,  or  presump- 
tion that  any  injury  sustained  by  the  deceased  was  occasioned  by 
his  willful  intention,  or  that  it  resulted  from  his  intoxication  while 
on  duty,  we  think  it  is  an  almost  necessary  inference  that,  if  he 
were  injured,  the  injury  was  accidental.  The  accident  must  have 
arisen  out  of  and  in  the  course  of  the  employment.  In  other  words, 
it  must  have  been  due  to  a  risk  to  which  the  deceased  was  exposed 
while  employed,  and  because  employed  by  the  defendant.  There 
is  evidence  that  Mailman  on  the  night  of  the  18th  was  in  good 
health.  He  was  left  performing  his  duties  at  the  foundry  'laugh- 
ing and  joshing.'  The  following  morning  he  was  found,  still  at 
his  post  of  duty,  stricken  and  helpless.  The  deceased  might  have 
left  the  foundry  in  the  night  in  pursuit  of  his  own  affairs,  re- 
ceived an  injury,  and  found  his  way  back.  He  might  have  been 
injured  in  the  foundry  while  doing  something  for  his  own  personal 
pleasure,  entirely  independant  of  his  employment.  These  un- 
supported hypotheses  are  so  improbable  as  to  be  almost  negligible. 
From  all  the  circumstances,  the1  commissioner  drew  the  inference 
that  Mailman's  injury  was  received  while  at  the  defendant's  found- 
ry and  arose  out  of  such  employment.  This  inference  is  neither 
unnatural  nor  irrational."80 

A  sheet  metal  worker  received  an  injury  to  his  ankle  and  was 
operated  on  in  a  hospital.  After  leaving  the  hospital  he  went  for 
an  automobile  ride  with  a  friend.  The  following  day  he  died  from 
general  sepsis  one  of  the  main  factors*  causing  the  conditions  of 
/lypostatic  pneumonia.  "It  is  insisted  by  plaintiff  in  error  that  the 
injury  to  the  foot  had  no  connection  with  the  death;  that  the 
conditions  which  caused  the  death  were  the  direct  result  of  the 
exposure  from  the  automobile  ride.  Shaw  wore  no  overcoat  during 
the  ride.  He  had  on  flannel  underwear,  his  limb  was  wrapped  in 
flannel,  and  he  was  wrapped  to  the  armpits  in  a  heavy  lap  robe. 
Several  physicians  testified,  most  of  them  as  experts.  Their 
testimony  is  too  voluminous  and  technical  to  set  out  in  this  opinion. 
They  did  not  all  agree,  and  the  opinions  expressed  by  some  of 
them  tend  to  support  the  contention  of  plaintiff  in  error.  Others 

80.  Mailman  v.  Record  Foundry  &  Machine  Co.,  118  Maine  172,  (1919), 
108  All.  606,  4  W.  C.  L.  J.  205. 

861 


§  348  WORKMEN'S  COMPENSATION  LAW 

expressed  the  opinion  that  death  resulted  from  the  continued  septic 
process,  and  that  the  ride  in  the  automobile  had  nothing  to  do 
with  it.  We  cannot  weigh  the  evidence.  If  there  is  any  competent 
testimony  fairly  tending  to  support  the  claim  of  defendant  in 
error,  we  cannot  consider  the  weight  of  the1  evidence,  and  reverse 
the  judgment  because  in  our  opinion  it  is  contrary  to  the  pre- 
ponderance of  the  testimony.  Munn  v.  Industrial  Board,  274  111. 
70,  113  N.  E.  110;  Bloomington  Decatur  &  Champaign  Railroad 
Co.  v.  Industrial  Board,  276  111.454,  114  N.  E.  939;  Schwarm  v. 
Thompson  &  Sons  Co.,  281  111.  486,  118  N.  E.  95.  There  was 
competent  testimony  to  support  the  claim  of  defendant  in  error 
that  the  death  resulted  from  an  accident  arising  out  of  and  in 
the  course  of  the  employment."81 

Where  a  piano  mover  strained  himself  while  moving  a  piano, 
and  later  died  from  abscess  and  pneumonia  resulting  from  the 
abscess,  the  court  held  that  the  medical  testimony  was  sufficient  to 
justify  a  finding  that  the  death  was  due  to  the  accident  arising 
out  of  the  employment,  and  not  due  to  disease.82 

Where  an  employer,  who  was  engaged  at  work  in  a  carpenter 
shop  where  there  was  a  circular  saw,  was  struck  in  the  chest 
by  a  flying  board  and  later  died  from  pneumonia,  which  the 
testimony  of  physicians  showed  was  directly  caused  by  the  acci- 
dental injury  received  in  the  course  of  the  employment,  the  master 
was  held  liable,  although  it  was  not  positively  shown  from  what 
source  the  flying  object  ca'me.83 

A  driver  fell  from  his  wagon  and  injured  his  head,  resulting 
in  loss  of  memory.  Subsequent  to  the  passing  of  the  Workmen's 
Compensation  Act  he  suffered  so  much  from  this  malady  that  lie 
lost  his  way  in  a  swamp  while  driving  back  to  the  stables,  and 
remained  all  night  in  the  swamp.  As  a  result  of  the  exposure  he 

81.  Gergstrom  v.  Indus.  Comm.,  286  111.  29,  121  N.  E.  195,  3  W.  C.  L. 
J.  232;    Ft.  Wayne  Rolling  Mill  Corp.  v.  Buanno,  (Ind  App.),  (1919),  122 
N.  E.  362,  3  W.  C.  L.  J.  626. 

82.  Wolford  v.  Geisel  Moving  &  Storage  Co.,  262  Pa.  454,  (1919),  105 
Atl.    8J31,   3   W.    C.    L.    J.    798;     Bayne   v.   Riverside    Storage   Co.,   181 
Mich.  378,  148  N.  W.  412,  5  N.  C.  C.  A.  837. 

83.  Hanna  v.  Michigan  Steel  Castings  Co.,  204  Mich.  139,  170   N.  W. 
6,  3  W.  C.  L.  J.  322. 

862 


ACCIDENT   ARISING   OUT  OP   COURSE  OF   EMPLOYMENT.      §    349 

developed  pneumonia  and  died.  It  was  held  that  his  death  was 
not  due  to  an  injury  arising  out  of  the  employment,  the  court  say- 
ing: "If  the  horse  driven  by  Milliken  had  run  away  and  Milliken 
had  been  thereby  thrown  out  and  killed  the  personal  injury  in 
fact  suffered  in  that  case  would  have  been  one  which  from  the 
nature  of  his  employment  would  be  likely  to  arise  and  so  would 
be  one  'arising  out  of  his  employment.'  But  as  we  have  said, 
there  is  nothing  in  the  employment  of  driving  a  wagon  which 
makes  it  likely  that  the  employee  will  alight  from  his  wagon, 
wander  to  and  fall  into  a  swamp,  and  lie  there  all  night.  It  seems 
phiin  that  if  Milliken 's  death  was  caused  by  a  personal  injury, 
it  was  the  one  which  happened  some  four  or  five  years  before 
the  occurrence  here  complained  of  and  before  the  Workmen's  Com- 
pensation Act  was  passed.  At  that  time  he  fell  from  his  wagon  and 
striking  on  his  head  suffered  as  a  result  'an  impairment  of  his 
memory.'  "84 

Where  a  city  fireman  contracted  pneumonia  as  the  result  of  a 
wetting  received  while  fighting  a  fire,  it  was  held  that  he  did 
not  die  as  the  result  of  an  "accident"  arising  out  of  his  employ- 
ment, as  this  was  one  of  the  natural  incidents  of  his  employment.85 

§  349.  Ruptures. — Where  an  employee  sustained  a  rupture  as 
the  result  of  a  strain,  caused  by  an  attmept  to  hold  castings 
on  a  truck  when  the  truck  dropped  into  a  hole,  it  was  held  that 
the  rupture  was  due  to  the  accident  arising  out  of  and  in  the 
course  of  the  employment.86 

Where  an  employee  sustaned  a  rupture  necessitating  an  operation, 
and  later  died  from  tuberculosis,  the  testimony  as  to  the  origin  of 
the  tuberculosis  was  conflicting,  and  the  court  held  that  the  onus  of 

84.  Milliken  v.  A.   Towle  &   Co.,   103  X.  E.  898,   216  Mass.  293,    4  N. 
C.  C.  A.  512,  L.  R.  A.  1916A,  337. 

85.  Landers  v.  Muskegon,  196  Mich.  751,  163   N.  W.  43;     Linnane  v. 
Aetna  Brewing  Co.,  91   Conn..  158,   99  Atl.  507. 

Note:    See  Hernia  §  200  ante. 

86.  Schanning  v.  Standard  Castings  Co.,  203  Mich.  612.  169  N.  W.  879, 
3  W.  C.  L.  J.  331. 


§'  349  WORKMEN'S  COMPENSATION  LAW 

proving  that  there  was  any  causal  connection  between  the  accident 
and -the  death  had  not  been  discharged.87 

Where  an  employee  claimed  that  he  sustained  a  rupture  as  the 

result  of  a  strain  from  overexertion  in  lifting  bundles  of  paper, 

and  the  evidence  showed  that  no  strain  occurred,  it  will  not  be 

presumed  that  the  rupture  was  due  to  an  accident  arising  out  of 

.-the  employment.88 

The  rupturing  of  a  bloodvessel,  as  the  result  of  a  strain  in 
heavy  lifting,  which  caused  death,  is  an  injiiry  arising  out  of  the 
employment.89 

Under  the  Minnesota  Workmen's  Compensation  Act,  death  caus- 
ed by  the  rupture  of  a  bloodvessel  resulting  from  muscular  strain 
and  exertion  while  working,  was  held  to  be  an  accident  arising  out 
of  and  in  the  course  of  the  employment.90 

"A  rupture  caused  by  a  strain  while  at  work  is  an  accident  or 
untoward  event,  arising  in  the  course  of  employment,  and  com- 
pensable  under  the  Workmen's  Compensation  Act.  Proof  of  ap- 
parent previous  good  health,  a  heavy  and  unusual  lift  in  the  course 
of  work,  discovery  of  rupture  on  the1  second  day  thereafter,  death 
from  surgical  operation  for  relief  thereof,  and  opinion  of  the 
operating  surgeon  that  the  rupture  was  caused  by  the  lifting,  is 
sufficient  to  establish  accidental  injury  in  the  course  of  employ- 
ment, within  the  meaning  of  said  act."91 

Where  an  employee  suffered  a  rupture  in  the  course  of  his 
employment,  and  the  employer's  report  to  the  insurance  companj 

87.  Kemp  v.  Clyde  Shipping    Co,  Ltd.,    119  L.  T.  R.  131,   (1918),  1", 
N.  C.  C.  A.  875. 

88.  Alpert  v.   J.  C.   &  W.  E.  Powers,  223  N.  Y.  97,  119  N.    E.  229,    ~i 
W.  C.  L.  J.  106,  17  N.  C.  C.  A.  248. 

89.  Greenburg  v.  Leather  Goods  Co.,  (1916),  3  Cal.  I.  A.  C.  328. 

90.  State  v.  District  Court,  137  Minn.  30,  162  N.  W.  678;    LaVeck  v 
Parke  Davis  Co.,  190  Mich.  604,  157    N.  W.    72,  L.  R.  A.  1916D,    1277; 
Southwestern  Surety  Ins.  Co.  v.  Owens,  (Tex.  Civ.  App.),  198  S  W.  662 
1   W.  C.  L.  J.  271;    Bystrom  v.  Jacobson,  162  Wis.  180,  355  N.   W.   919; 
Hughes  v.  Clover  Clayton,  3  B.  W.  C.  C.  175;   Mathiessen-Hegeler  Zinc 
Co.  v.  Indus.  Bd.,  284  111  378,  120  N.  E.  249;  Peoria  Railroad  Terminal  v. 
Indus.  Bd.,  279  111.  352,  116  N.  E.  651. 

91.  Poccardi  v.  Public  Serv.  Comm.,  75  W.  Va.  542,  84  S.  E.  242,  8  N. 
C.  C.  A.  1065. 

864 


ACCIDENT  ARISING  OUT  OP  COURSE  OF  EMPLOYMENT.      §   350 

stated  that  the  employee  was  injured  as  the  result  of  the  elevator 
operator  losing  control  and  the  dropping  of  the  cage  in  conse- 
quence, is  sufficient  evidence  to  make  out  a  priraae  facie  case,  and 
will  sustain  a  finding  that  the  injury  arose  out  of  the  employment.9* 

§  350.  School  Teacher  Injured  or  Killed.— The  duties  of  the 
principal  of  a  high  school  included  the  selection  of  a  team  each 
year  for  the  purpose  of  playing  basket  ball.  While  so  doing  he 
was  struck  by  a  basket  ball,  sustaining  injuries  from  which  he 
died.  It  was  held  that  his  death  was  due  to  an  injury  arising 
out  of  the  employment.08 

"A  school  district  employed  a  young  woman  teacher  for  a  one- 
room  school  in  a  densely  wooded  and  sparsely  settled  part  of  the 
country.  On  her  way  to  her  boarding  house,  after  her  day's  work 
at  the  schoolhouse  was  done,  and  when  off  the  school  house  grounds, 
she  was  assaulted  by  an  unkown  man  for  the  gratification  of  his 
passions,  and  as  a  part  of  the  transaction  she  was  shot  and  the 
sight  of  one  eye  was  destroyed.  The  Workmen's  Compensation 
Act.  (Gen.  St.  Minn.  1913,  Section  8195  et  seq.)  gives  compensation 
for  personal  injury  "caused  by  accident,  arising  out  of  and  in  the 
course  of  employment."  It  does  not  cover  workmen,  except  while 
engaged  in  or  about  the  premises  where  their  work  is  done  or 
their  service  requires  their  presence;  and  it  excludes  "an  injury 
caused  by  the  act  of  a  third  person  or  fellow  employee  intended 
to  injure  the  employee  because  of  reasons  personal  to  him,  and  not 
directed  against  him  as  an  employee1,  or  because  of  his  employ- 
ment." Without  determining  whether  the  injuries  to  the  teacher 
arose  in  the  course  of  the  employment,  it  is  held  that  they  were  not 
caused  by  accident  arising  out  of  the  employment  and  that  they 
are  not  compensable  under  the  Compensation  Act."94 

92.  Egger's  Veneer  Seating  Co.  v.  Indus.  Comm.  of  Wis.,  (1919),  170 
N.  W.  280,  168  Wis.  377,  3  W.  C.  L.  J.  396. 

Note:     For  further  cases  on  rupture,  see  "Strains,"  "Bloodvessel    Rup- 
tured," "Aneurisms"  and  "Artery  Ruptures." 

93.  City  of  Milwaukee  v.  Indus.  Comm.,  160  Wis.  238,  151  N.  W.  247. 

94.  State  ex  rel.  Common  School  District  No.  1  in  Itasca  County  v.  Dist- 
rict Court  of  Itasca  County,  140  Minn.  470,  168  N.  W.  555,  17  N.  C.  C.  A. 
937,  2  W.  C.  L.  J.  661. 

865 

W.  C.— 55 


§  351  WORKMEN'S  COMPENSATION  LAW 

A  school  teacher,  in  order  to  open  a  bookcase  to  obtain  needed 
books,  attempted  to  move  a  row  of  desks  weighing  458  pounds, 
which  had  been  placed  in  front  of  the  case  on  the  previous 
Friday  night  to  make  room  for  a  dancing  party,  and  as  a  result 
of  the  attempt  she  injured  her  back.  It  was  held  that  she  had 
sustained  an  injury  arising  out  of  the  employment  regardless  of 
the  fact  that  the  duty  of  replacing  the  seats  devolved  upon  the 
janitor.95 

A  school  teacher  tripped  and  fell  and  sustained  injuries  while 
going  to  a  telephone  on  business  of  her  own  after  school,  but 
while  she  was  still  at  the  schoolhouse  finishing  her  work.  It  was 
held  that  she  had  suffered  an  accidental  injury  arising  out  of  her 
employment,  for  the  course  of  employment  is  not  restricted  to 
acts  solely  for  the  master's  benefit,  but  includes  all  acts  which  an 
employee  may  reasonably  do  while  at  work.96 

Where  the  evidence  showed  that  a  school  teacher's  previous 
health  was  very  poor,  and  the  evidence  of  the  schoolroom  being 
poorly  heated  was  contradicted,  it  was  held  that  it  could  not  be 
said  that  her  death  from  pneumonia  had  any  causal  connection 
with  the  employment97 

§  351.  Self  Inflicted  Injuries. — An  employee  of  a  logging  crew 
was  killed  by  dynamite  which  was  used  in  blowing  out  stumps. 
The  accident  occurred  while  everybody,  except  deceased,  was  at 
dinner.  It  was  contended  that  the  applicant  had  not  shown  that 
the  accident  arose  out  of  the  employment  and  was  not  a  case  of 
self-inflicted  injury.  The  commission  found  that  the  death  was 
due  to  an  accident  arising  out  of  the  employment.  On  appeal  the 
court  said :  ' '  The  appellant  contends  that  the  facts  in  the  record 
before  the  commission  were  not  such  as  to  warrant  the  inference 
arrived  at  by  the  commission  that  Perry's  death  occurred  while  he 
was  in  the  performance  of  his  duty  and  in  the  master's  employ- 
ment, and  that  such  conclusion  must  have  been  based  upon  mere 

95.  Elk  Grove  Union  High  School  District  v  Indus.  Ace.  Comm.  of  Cal., 
34,  Cal.  App.  589,  168  Pac.  392,  15  N.  C.  C.  A.  148,  1  W.  C.  L.  J.  143. 

96.  Reiff  v.  City  of  Sacremento,  2  Cal.  I.  A.  C.  251,  (1915),  12  N.  C.  C. 
A.  901. 

97.  Arnold  v.  Town    of    Brooklyn,  1  Conn.    Comp.    Dec.   188. 
866 


ACCIDENT   ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §    351 

conjecture,  and  that  therefore  the  claimant  had  not  met  the  burden 
of  proof  imposed  upon  her  under  the  law.  It  is  also  contended 
that  there  was  no  evidence  showing  that  there  was  any  reason 
for  blowing  up  the  tree  near  which  Perry  was  found  dead,  or 
that  there  was  any  further  work  of  blasting  required  for  the 
stump,  already  partly  blasted,  which  was  near  where  his  body  was 
found,  and  that  there  was  no  foundation  for  the  su«r«r»'stioii  by  the 
commission  in  their  finding  that  Perry  remained  at  the  place  after 
the  crew  went  to  dinner  in  order  to  clear  away  the  tree  or  stumps, 
and  that  therefore  there  was  a  total  absence  of  evidence  upon 
which  might  be  predicated  a  finding  that  Perry  met  his  death 
while  within  the  scope  of  his  employment.  It  is  undoubtedly  the 
rule  of  law  in  this  state  that  findings  of  the  Industrial  Commission 
must  be  supported  by  evidence  and  not  based  upon  mere  con- 
jecture. Voelz  v.  Industrial  Com.,  161  Wis.  240,  152  N.  W.  830. 
The  situation  here  was  one  clearly  requiring  the  commission  to 
apply  the  well-recognized  presumption  against  suicide  in  such  cases 
of  accidental  death.  Mil.  W.  F.  Co.  v.  Industrial  Com.,  159  Wis. 
635,  150  N.  W.  998.  With  that  presumption,  therefore,  and  the 
facts  disclosed  in  the  testimony  of  Perry's  employment  as  foreman 
in  charge  of  the  construction  of  this  road,  the  partially  exploded 
stump  left  in  the  road,  or  even  the  sapling  near  which  he  was 
found,  upon  either  of  which  Perry  might  have  been  contemplatintr 
the  use  of  dynamite,  even  though  such  use  might  not  have  been 
in  accordance  with  the  customary  or  enconomical  way  of  con- 
structing such  a  road,  all  presented  a  situation  from  which  the 
conclusion  might  have  been  reasonably  and  properly  drawn  that 
whatever  Perry  was  then  doing  was  within  what  he  then  thought 
\\as  his  duty  rather  than  the  conclusion  that  it  was  an  intentionally 
self-inflicted  injury.  Within  the  broad  field  intended  to  be  covered 
by  our  Compensation  Act  we  think  the  conclusion  arrived  at  by  the 
commission  was  within  their  discretion."*8 

"There  can  be  no  presumption  that  a  man  recklessly  imperils 
his  own  life."  So  where  an  officer  returned  to  a  vessel  from  his 
life  boat,  after  the  ship  had  drifted  onto  the  rocks  and  had  been 

98.  Bekkedal  Lumber  Co.  v.  Indus.  Comm.  of  Wis..  168  Wis.  230.  169. 
N.  W.  561.  3  W.  C.  L.  J.  212,  17  N.  C.  C.  A.  247. 

867 


§•  352  WORKMEN'S  COMPENSATION  LA\V 

abandoned,  thereby  losing  his  life,  it  was  held  that  there  was  no 
presumption  that  he  intended  to  sacrifice  himself." 

Whefre  a  boy  fifteen  years  of  age  was  killed  as  the  result  of  an 
attempt  to  play  a  practical  joke  upon  a  fellow  employee,  the  in- 
jury cannot  be  said  to  have  been  purposely  self-inflicted  so  as  to 
defeat  a  claim  for  compensation.1 

§  352.  Suicide. — An  employee  who  was  engaged  in  removing 
ashes  from  a  pit  under  a  large  steel  burner,  died  from  the  effects 
of  ashes  which  had  been  taken  into  his  stomach.  "There  is  no 
evidence  tending  to  show  that  on  the  night  in  question  plaintiff's 
decedent  had  with  him  a  pail  of  water  into  which  large  quanti- 
ties of  ashes  might  have  fallen  in  the  course  of  the  work.  There 
is  no  evidence  that  decedent  drank  from  a  pail  of  water  heavily 
impregnated  with  ashes.  There  is  evidence  of  the  physician  to 
the  effect  that  the  liquid  taken  from  the  man's  stomach  would 
be  'a  little  burning;'  that  'it  would  burn  and  taste  nasty;'  and 
that.  'To  swallow  something  that  hasn't  a  pleasant  taste  involves 
an  effort  of  the  will.'  Counsel  for  claimant  assert  that  the  fore- 
going facts  are  sufficient  to  support  the  inference  indulged  in  by 
the  board  to  the  effect  that  decedent  swallowed  the  ashes  and 
alkaline  liquid  accidentally.  They  point  out  that,  it  being  undis- 
puted the  lye  and  ashes  were  in  the  stomach  and  caused  the 
death,  the  only  possible  inferences  are:  (1)  That  they  were 
taken  into  the  stomach  by  the  decedent  accidentally;  or  (2)  that 
they  were  so  taken  willfully  and  with  suicidal  intent — and  they 
rest  upon  the  presumption  against  suicide,  citing  Wishcaless  v. 
Hammond,  201  Mich.  193, 166  N.  W.,  993.  This  position  is  met  by 
counsel  for  appellant  with  the  argument  that  the  presumption 
arises  only  where  the  facts  and  the  logical  deductions  therefrom 
point  with  equal  cogency  to  suicide  or  accidental  death,  and  that 
in  the  case  at  bar  the  accidental  theory  is  negatived  by  the  testi- 
mony of  the  doctor  that  the  substance  found  in  the  stomach  of 

99.  North  Pac.  S.  S.  Co.  v.  Indus.  Comm.  of  Cal.,  174  Cal.  346,  163 
Pac.  910,  14  N.  C.  C.  A.  425. 

1.     Twin  Peaks  Canning  Co.  v.  Indus.  Comm.,  —  Utah  — ,  (1921),  196 
Pac.  853. 
868 


ACCIDENT   ARISING   OUT  OP  COURSE  OP   EMPLOYMENT.      §   352 

the  decedent  could  not  have  been  taken  by  decedent  without  a 
conscious  effort  because  of  its  unpleasant  taste.  The  rule  to  be 
adopted  by  the  board  is  set  out  clearly  in  the  case  of  Ginsburg  v. 
Adding  Machine  Co.,  204  Mich.  130,  170  N.  W.  15,  in  the  following 
language:  'It  is  the  province  of  the  board  to  draw  the  legitimate 
inference  from  the  established  facts  and  to  weigh  the  probabili- 
ties from  such  established  facts.  Wilson  v.  Phoenix  Furniture 
Co.,  201  Mich.  531,  167  N.  W.  839.  But  the  inferences  drawn  must 
be  from  established  facts ;  inference  may  not  be  built  upon  infer- 
ence, possibilities  upon  possibilities,  or  inferences  drawn  con- 
trary to  the  established  facts,  contrary  to  the  undisputed  evi- 
dence. If  an  inference  favorable  to  the  appellant  can  only  be  ar- 
rived at  by  conjecture  or  speculation, -the  applicant  may  not  re- 
cover. So  if  there  are  two  or  more  inferences  equally  consistent 
with  the  facts,  arising  out  of  the  established  facts,  the  applicant 
must  fail' — citing  many  cases.  Applying  that  rule  to  the  facts  in 
the  case  at  bar,  and  in  further  consideration  of  the  rule  which 
places  the  burden  of  establishing  the  claim  for  compensation  on 
those  seeking  the  award,  we  are  constrained  to  the  view  that  the 
inference  that  the  liquid  and  ashes  found  in  decedent's  stomach 
and  which  caused  his  death  were  taken  into  the  system  by  the 
decedent  with  suicidal  intent  is  at  least  as  reasonable  as  that  they 
found  entrance  to  the  stomach  accidentally,  and  where  two  infer- 
ences equally  consistent  with  the  facts  arise  out  of  established 
facts,  one  involving  liability  on  the  part  of  the  employer  under 
the  act,  and  the  other  relieving  him  from  liability,  the  applicant 
must  fail.  The  award  must  be  vacated."  In  this  case  there  was 
a  dissenting  opinion  concurred  in  by  three  of  the  seven  judges 
and  based  principally  upon  the  authority  of  the  case  mentioned  in 
the  following  paragraph.2 

An  elevator  operator  disappeared,  and  three  days  later  his 
body  was  found  in  the  bottom  of  an  elevator  shaft.  There  was 
evidence  that  deceased  was  intoxicated  early  in  the  morning  on 
the  day  of  the  accident,  that  his  domestic  relations  had  not  been 

2.  Chaudier  v.  Stearns  &  Culver  Lbr.  Co.,  206  Mich.  433,  (1919),  4  W. 
C.  U  J.  608,  173  N.  W.  198;  Rourke  v.  Holt  &  Co.  0918)  W.  C.  ft  Ing. 
Rep.  7,  51  Ir.  L.  T.  121. 

869 


§  353  WORKMEN'S  COMPENSATION  LAW 

happy,  and  that  the  mechanical  superintendent  had  reprimanded 
him  for  inattentiveness  to  his  duties.  The  court  held  that  where 
the  death  occurred  under  circumstances  which  would  suggest 
either  suicide  or  accident  the  presumption  is  against  suicide  and 
in  favor  of  an  accident.3 

A  miner  was  found  dead,  following  an  explosion.  No  one  saw 
the1  accident,  and  there  was  no  occasion  for  the  use  of  explosives 
at  that  time.  There  was  evidence  tending  to  show  circumstances 
equally  consistent  with  a  finding  of  suicide  as  with  that  of  acci- 
dent. The  court  said:  "Other  facts  and  circumstances  are  men- 
tioned in  the  testimony,  most,  of  them  unimportant  and  none  or 
all  of  them  conclusive  of  either  theory.  If  death  is  not  the  re- 
sult of  suicide,  the  employer  must  respond.  The  evidence  may  be 
too  meager  to  establish  affirmatively  either  accident  or  suicide, 
but  when  violent  death  is  shown,  the  presumption  arises  that  it 
was  not  self-inflicted.  'As  between  accident  and  suicide  the  law  for 
logical,  and  sensible  reasons  supposes  accident,'  until  the  contrary 
is  shown.  *  *  *  The  evidence  is  surely  not  conclusive  of  suicide. 
We  conclude  that  the  determination  of  the  trial  court  that  death 
was  accidental  is  sustained."4 

§  353.  Testing  Racing  Motorcycle. — Where  an  employee  of  a 
firm  dealing  in  racing  motorcycles  sustained  serious  injuries 
while  testing  the  speed  of  a  motorcycle  at  the  direction  of  his 
employer,  it  was  held  that  the  crashing  of  the  motorcycle  through 

3.  Wishcaless  v.  Hammond,  Standish  &  Co.,  201  Mica.  192,  166  N.  V, 
993,  1  W.  C.  L.  J.  1055,  17  N.  C.  C.  A.  792;  Bekkedal  Lbr.  Co.  v.  Indus. 
Com.  of  Wis.,  168  Wis.  230   169  N.  W.  561,  3  W.  C.  L.  J.  212,  17  N.  C.  C. 
A.  247. 

4.  State  ex  rel.  Oliver  Iron  Mining  Co.  v.  District  Court  of  St.   Louis 
County,    138  Minn.    138,   164   N.  W.   582,15    N.    C.    C.  A.    526;  .Milwaukee 
Western    Fuel    Co.  v.  Indus.     Comm.,    159   Wis.     635,    150     N.   W.    998; 
Sorensen  v.  Menasha  Paper  Co.,  56  Wis.  342,  14  N.  W.  446;  W.  R.  Rideout 
Co.  v.  Pillsbury,  173  Cal.  132,  159  Pac.  435,  12  N.  C.  C.   A.  1032. 

Note:  See  "Suicide"  §  248  ante,  also  "Death,  Presumption  From  While 
at  Work,"  §  167  ante.  "Insanity"  §  §  210  and  339  ante,  see  also  "Self- 
Inflicted  Injuries"  §  351  ante. 

870 


ACCIDENT   ARISING  OUT  OP  COURSE  OP   EMPLOYMENT.      §   354 

a  fence  while  going  at  the  rate  of  sixty  tw,p  miles  per  hour  was 
an  accident  arising  out  of  the  employment.5  ~ 

An  employee,  whose  duties  as  a  solicitor  required  constant  use 
of  a  motorcycle,  which  was  furnished  by  his  employer,  was 
injured  while  trying  out  a  motorcycle  at  the  place  of  business 
of  a  dealer  where  his  employer  contemplated  purchasing  another 
motorcycle.  It  was  held  that,  in  assuming  to  act  without  any  au- 
thority in  this  regard,  the  employee  was  acting  outside  the  scope 
of  his  employment,  and  therefore  his  injury  did  not  arise  out  of 
the  employment.6 

§  354.  Tetanus. — A  driver  for  a  florist  undertook  to  assist  in 
the  adjustment  of  a  window  box  for  a  customer,  and  in  doing  so 
he  fell  from  a  ladder,  causing  a  compound  fracture  of  the  thumb 
which  resulted  in  tetanus  and  death.  The  court  of  appeals,  iu 
reversing  a  judgment,  held  that  the  accident  did  not  arise  out 
of  the  employment,  for  there  was  no  causal  connection  between 
deceased's  employment  and  the  accident,  for  his  duties  did  not  In 
elude  the  adjusting  of  window  boxes  for  customers.7 

A  boy,  sixteen  years  of  age,  was  employed  by  the  defendant  to 
take  up  a  floor.  The  work  was  finished  in  the  forenoon,  and  in  the 
afternoon,  while  decedent  and  other  boys  were  looking  for  money 
in  the  dirt  beneath  the  floor,  he  ran  a  nail  into  his  foot  causing  teta- 
nus and  death.  It  was  held  that  the  death  did  not  result  from  an 
accident  arising  out  of  the  employment.8  Where  death  resulted 
from  a  similar  injury  received  while  the  employee  was  at  work, 
compensation  was  awarded.8 

An  employee,  whose  duties  included  gathering  dirt  from  the 
street,  stepped  on  a  rusty  nail  as  he  was  getting  into  his  wagon, 
and  the-  wound  became  poisoned  and  death  resulted  from  tetanus. 
The  court  in  affirming  an  award  for  accidental  death  arising  out  of 
the  employment,  said:  "The  commission  has  found  that  one  of 

5.  Lawson  v.  Stockton  Motor  Cycle  and  Supply  Co.,  2  Cal.  I.  A.  C.  628. 

6.  Phillips  v.  Pacific  Gas  ft.  Elect.  Co.,  2  Cal.  I.  A.  C.  788. 

7.  Glatzl  v.  Stumpp,  220  N.  Y.  71,  114  N.  E.  1053,  16  N.  C.  C.  A.  646. 
rev'g  174  N.  Y.  App.  Div.  901,  159  N.  Y.  8.  1115. 

8.  Davis  v.  Mais,  Indiana  Indus.  3d..  (1915),  11  N.  C.  C.  A.  506. 

9.  Sayder  et  al.  v.  Indus.  Comm.,  —  111.  — ,  ISO  N.  E.  517,  (1921). 

871 


§<  356  WORKMEN'S  COMPENSATION  LAW 

the  duties  of  deceased  was  going  about  the  streets,  shoveling  dirt 
into  his  wagon.  One  of  the  necessary  incidents  of  driving  about 
the  streets  was  getting  on  and  off  his  wagon.  While  the  dangoi 
of  stepping  on  the  nail  may  be  said  to  have  been  common  to  all 
persons  using  the  street,  an  injury  therefrom  to  a  mere  passer 
along  the  street,  not  engaged  in  a  hazardous  employment,  or  in 
performance  of  an  act  incidental  thereto,  would  probably  not  af- 
ford a  right  to  compensation  under  the  act.  The  hazardous  em- 
ployment of  the  deceased  required  his  continual  presence  upon 
the  street  in  the*  discharge  of  the  duties  of  his  employment.  Tli3 
mere  fact  that  a  person  not  engaged  in  a  hazardous  employment 
was  exposed  to  the  danger  of  a  similar  injury,  should  he  chance 
to  travel  that  way,  furnishes  no  argument  for  a  denial  of  the 
right  of  compensation  to  a  person  whose  hazardous  employment 
compelled  his  constant  presence  on  the  street."10 

§  355.  Toxic  Amblyopia. — A  photographer  suffered  from  toxic 
amblyopia,  which  was  due  to  some  poison  taken  into  the  body.  He 
had  been  slightly  burned  about  the  head  and  face  by  an  explosion 
in  the  course  of  his  employment,  but  his  eyes  were  not  injured 
thereby.  It  was  held  that  there  was  no  evidence  to  show  that 
his  condition  was  due  to  any  accidental  injury  arising  out  of  the 
employment.11 

§  356.  Tuberculosis. — An  employee  suffered  an  injury  in  the 
course  of  and  arising  out  of  the  employment,  which  was  of  such 
a  serious  nature  as  to  greatly  impoverish  his  system  and  predispose 
it  to  an  infection  of  tuberculosis,  of  which  there  was  not  the 
slightest  indication  before  the  injury.  The  court,  in  holding  that 
the  death  was  due  to  the  accident  arising  out  of  the  employment, 
said:  ""Where  a  workman  receives  personal  injury  from  an  acci- 
dent arising  out  of  and  in  the  course  of  his  employment,  and  dis- 
ease ensues  which  incapacitates  him  for  work,  the  incapacity  may 

10.  Putnam  v.  Murray,  174  N.  Y.  App.  Div.  720,  160  N.  Y,  S.  811,  15  N. 
C.  C.  A.  256. 

Note:    See  §  252  ante. 

11.  Diehels  v.  Lasky's,  (1916),  3  Cal.  I.  A.  C.  351. 
872 


ACCIDENT   ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.      §    356 

be  the  result  of  the  injury,  within  the  meaning  of  the  (English) 
Workmen's  Compensation  Act,  even  though  it  is  not  the  natural 
result  of  the  injury.  The  question  to  be  determined  on  a  claim 
for  compensation  is  whether  the  incapacity  is  in  fact  the  result 
of  the  injury.  Ystradowen  Colliery  Co.  v.  Griffiths,  (1909),  2  K. 
B.  533.  In  a  case  where  a  petitioner's  arm  was  broken  while  he 
was  in  defendant's  employ,  and  the  fracture  properly  united, 
but  there  developed  an  abscess  upon  the  fleshy  part  of  the  thumb, 
which  resulted  in  ankylosis,  making  the  thumb  useless,  our  Su- 
preme Court  held  that,  the  ankylosis  of  the  thumb  was  an  injury 
arising  by  accident  out  of  and  in  the  course  of  the  employment. 
Newcomb  v.  Albertson,  85  N.  J.  Law,  435,  89  Atl.  928.  And  Mr. 
Justice  Swayze,  in  writing  the  opinion  in  Liondale  Blefcch  "Works 
v.  Riker,  85  N.  J.  Law,  426,  at  page  429,  89  Atl.  929,  observed 
that  the  question  of  disease  following  an  accident  was  consid- 
ered in  Newcomb  v.  Albertson,  supra.  The  decision  there,  rested 
on  certain  English  cases,  is  to  the  effect  that  an  injury  which  fol- 
lows an  accident,  and  which,  but  for  the  accident,  would  not  have 
happened,  justifies  the  finding  that  the  injury  in  fact  results  from 
the  accident."12 

An  employee  received  abrasions  on  his  leg  and  foot,  as  the 
result  of  an  injury  arising  out  of  the  employment,  and  alleged 
that  a  condition  of  tuberculosis  was  accelerated  by  the  injury. 
The  board  found  that  there  was  no  causal  connection  between 
the  injury  and  the  disease,  and  that  the  disease  was  not  due  to 
an  injury  arising  out  of  the  employment.18 

A  night  watchman,  predisposed  to  tuberculosis  of  the  bones, 
fell  while  acting  within  the  course  of  his  employment  and  injured 
his  knee.  He  was  taken  to  a  hospital  and  afterwards  discharged. 
He  returned  to  work  and  later  the  injury  recurred,  necessitating 
amputation  of  the  leg  which  was  affected  with  tuberculosis.  In 
affirming  the  award  for  an  injury  arising  out  of  the  employment, 
the  court  said  that  the  evidence  clearly  discloses  that  the  disabili- 

12.  Lundy  v.  George  Brown  &  Co.  (1919).  93  N.  .T.  L.  107,  108  AU. 
252,   5   W.  C.  L.J.294;     Glennon's   Case,   --   Mass.   — ,    (1920),   128   N. 
E.  942.  7  W.  C.  L.  J.  210. 

13.  McCarthy's  Case,  120  N.  E.  852,  231  Mass.  259,  3  W.  C.  L.  J.  141. 

873 


§  357  WORKMEN'S  COMPENSATION  LAW 

ty  was  due  to  an  injury  arising  out  of  and  in  the  course  of  the 
employment.  The  fact  that  the  employee  may  have  been  predis- 
posed to  tuberculosis  of  the  bone  is  immaterial,  as  the  evidence 
clearly  shows  that  the  tuberculosis  of  the  left  knee  developed  as 
a  result  of  the  injury.14 

An  employee  was  working  on  a  crane  when  one  of  the  timbers 
broke.  He  jumped  into  the  river  to  save  himself,  and  the  ex- 
posure which  resulted  caused  pulmonary  tuberculosis.  It  was 
held  that  he  suffered  an  accidental  injury  that  arose  out  of  and 
in  the  course  of  the  employment.15 

Where  an  employee  received  a  blow  over  the  spine  which  en- 
cited  a  preexisting  tubercular  condition  to  such  virulent  activity 
as  to  totally  incapacitate  the  employee  for  work,  the  court,  in 
affirming  an  award  for  accidental  injury  arising  out  of  the  em- 
ployment, said:  "Likewise  the  courts,  consistent  with  the  theory 
of  workmen's  compensation  acts,  hold  with  practical  uniformity 
that,  where  an  employee  afflicted  with  disease  receives  a  personal 
injury  under  such  circumstances  as  that  he  might  have  appealed 
to  the  act  for  relief  on  account  of  the  injury  had  there  been  no 
disease  involved,  but  the  disease  as  it  in  fact  exists  is  by  the  in- 
jury materially  aggravated  or  accelerated,  resulting  in  disability 
or  death  earlier  than  would  have  otherwise  occurred,  and,  the 
disability  or  death  does  not  result  from  the  disease  alone  pro- 
gressing naturally  as  it  would  have  done  under  ordinary  condi- 
tions, but  the  injury,  aggravating  and  accelerating  its  progress, 
materially  contributes  to  hasten  its  culmination  in  disability  or 
death,  there  may  be  an  award  under  the  compensation  acts."16 

§  357.  Typhoid  Fever. — An  employee  received  an  injury  in 
the  course  of  his  employment  when  a  belt  broke  and  struck  him 
in  the  face.  Later  he  was  taken  down  with  pneumonia  and  ty- 

14.  Wabash  R.  Co.  v.  Indus.  Comm.  286  111.  194,  121  N.  E.  569,  3  W. 
C.  L.  J.  435. 

15.  Rist  v.  Larkin  &  Sangster,  156  N.  Y.  S.  875,  171  App.  Div.  71,  15 
N.  C.  C.  A.  688. 

16.  In  re  Bowers,  In  re  Williams,  In  re  Colan,  64  Ind.  App.  — ,  116  N. 
E.  842,  15  N.  C.  C.  A.  633. 

Note:    For  additional  cases  on  this  subject  see  §  254  ante. 
874 


ACCIDENT   ARISING   OUT  OP  COURSE  OP   EMPLOYMENT.      §   358 

phoid  fever.  The  medical  testimony  was  to  the  effect  that  the 
traumatic  injury  was  likely  to  have  caused  the  pneumonia.  The 
court  held  that  there  was  sufficient  evidence  to  justify  a  finding 
that  the  pneumonia  and  typhoid  fever  were  caused  by  the  injury 
arising  out  of  the  employment,  and  that  death  was  the  direct  re- 
sult of  these  diseases.17 

Where  an  employee  contracted  typhoid  fever  as  the  result  of 
drinking  contaminated  water  furnished  by  the  government,  and 
it  later  developed  into  pneumonia  and  empyema,  it  was  held  that 
this  was  not  an  accident  arising  out  of  the  employment.18 

A  nurse  in  a  hospital  contracted  typhoid  fever,  but  the  evidence 
failed  to  show  how  or  where  she  contracted  the  disease.  It  was 
held  that  the  evidence  failed  to  show  that  the  typhoid  fever  was 
caused  by  or  arose  out  of  the  employment.19 

§  358.  Ulcers. — Where  an  employee  splashed  lye  water  in  his 
eye,  and  a  corneal  ulcer  developed,  it  was  held  to  be  an  injury 
arising  out  of  the  employment.20 

Where  the  evidence  showed  that  ulcerative  endocarditis  was  not 
caused  by  the  accidental  injury,  compensation  under  the  Federal 
Act  was  denied.21 

§  359.  Unintentional  Injury  by  a  Fellow  Employee. — Where 
an  employee,  while  seeking  instructions  from  another  employee 
who  was  leaning  over,  placed  his  arm  about  the  fellow  employee's 
neck,  and  in  doing  so  a  pencil  in  the  pocket  of  the  employee  seek- 
ing instructions  pierced  the  eyeball  of  the  fellow  employee,  the 
court  held  that  the  injury,  though  received  in  the  course  of  the 
employment ;  did  not  arise  out  of  the  employment,  for  it  resulted 

17.  Vogeley  v.  Detroit  Lbr.  Co.,  196  Mich.  516,  162  N.  W.  975,  15  N. 
C.  C.  A.  641. 

18.  Re  Claim  of  Robert  K.  Potter,  Op.  Sol.  Dep.  C.  *  L.   (1915),   *.72. 

19.  Tobin  v.  City  &  County  of  San  Francisco,  (1916),  3  Cal.  I.  A.  C 
314;  Collins  v.  Oakdale  Irrigation  District,  3  Cal.  I.  A.  C.  344. 

Note:    See  same  title  §  256  ante. 

20.  Grimes  v.  The  Red  River  Lbr.  Co.,  3  Cal.  Ind   A.  C.  66. 

21.  In  re  Carl  A.  Carlson.  3rd.  A.  R.  U.  S.  C.  C.  120. 
Note:    See  §  257  ante. 

875 


§'  359  WORKMEN'S  COMPENSATION  LAW 

from  the  sportive  act  of  a  fellow  employee,  and  was  not  incidental 
to  the  employment.22 

An  employee  fainted  after  a  dispute  with  her  employer,  and 
fellow  employees  brought  a  glass  of  ammonia  and  a  glass  of  wa- 
ter. By  mistake  the  ammonia  was  thrown  in  her  face,  burning  her 
seriously.  The  court  said:  "Clearly  the  injuries  so  received  by  her 
were  accidental  and  arose  in  the  course  of  her  employment,  but 
they  did  not  arise  out  of  such  employment.  If  she  had  fainted  be- 
cause of  fumes  present  in  the  work  room  and  so  falling  had  in- 
jured herself,  a  different  question  would  have  been  presented ;  but 
the  claimant  fainted  because  of  her  physical  condition,  and  even 
if  her  faintness  might  have  been  said  to  have  resulted  from  her 
quarrel  with  her  boss  with  regard  to  her  work,  the  fainting  was  in 
no  proper  sense  connected  with  the  accident.  The  accident  was 
caused  by  a  co-employee  mistaking  the  two  glasses  containing 
ammonia  and  water,  not  because  the  ammonia  was  exposed  and 
an  error  arose  as  to  its  nature  or  use.  The  employee  who  obtained 
it  knew  precisely  what  it  was.  The  employer  had  not  furnished 
the  ammonia  as  medicine  for  his  employees  nor  had  he  authorized 
in  any  way  its  use  by  them  as  a  medicine.  A  fainting  such  as  is 
shown  in  this  case  and  help  such  as  was  given  is  not  a  natural  in- 
cident to  the  business.  It  has  no  more  connection  with  it  than  if 
a  physician  had  been  called  in  and  having  been  handed  glasses  of 
ammonia  and  water  had  made  the  same  mistake."23 

An  employee  threw  a  missile  at  a  fellow  employee  without  any 
intention  to  injure  him,  but  it  struck  him  in  the  eye  destroying 
the  vision  of  one  eye.  The  practise  of  boys  throwing  these  missi- 
les during  working  hours  was  known  or  could  have  been  known 
to  the  employer  by  the  exercise  of  ordinary  diligence.  The  in- 
jured employee  never  participated  in  this  sport.  Affirming  an 
award  in  favor  of  claimant,  the  court  said:  "The  rule  is  well 
enough  settled  that  where  workmen  step  aside  from  their  em- 
ployment and  engage  in  horseplay  or  practical  joking,  or  so  en- 
gage while  continuing  their  work,  and  accidental  injury  results, 
and  in  general  where  one  in  sport  or  mischief  does  some  act  re- 

22.  Markell  v.  Green  Felt  Shoe  Co.,  221  N.  Y.  493,  116  N.  E.  1060. 

23.  Saenger  v.  Locke,  220  N.  Y.  556,  116  N.  E.  367. 
876 


ACCIDENT   ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.      §   360 

suiting  in  injury  to  a  fellow  worker,  the  injury  is  not  one  arising 
out  of  the  employment  within  the  meaning  of  compensation  acts. 
*  *  *  Here  we  conceive  the  situation  to  be  different.  Filas  was 
exposed  by  his  employment  to  the  risks  of  injury  from  the  throw- 
ing of  sash  pins  in  sport  and  mischief.  He  did  not  himself  engage 
in  the  sport.  His  employer  did  not  stop  it.  The  risk  continued. 
The  accident  was  the  natural  result  of  the  missile-throwing  pro- 
clivities of  some  of  Filas 's  fellow  workers  and  was  a  risk  of  the 
work  as  it  was  conducted."24 

Where  a  taxicab  chauffeur  was  injured  while  scuffling  with  a 
fellow  employee  while  he  was  awaiting  a  call,  the  court  held  that 
he  was  not  engaged  in  any  act  incident  to  his  employment,  and 
therefore  his  injury  did  not  arise  out  of  the  employment." 

Where  an  employee,  while  running  to  punch  the  time  clock 
when  the  noon  whistle  blew,  collided  with  a  fellow  employee, 
breaking  several  ribs,  one  of  which  punctured  his  lung  causing 
death,  the  court  said:  "At  the  time  of  the  accident,  Raynor  was 
in  the  performance  of  a  duty  imposed  upon  him  by  his  employer. 
The  performance  of  this  duty,  if  not  the  proximate  cause,  was  a 
concurring  cause  of  the  injury."" 

§  360.  Using  Elevator  Contrary  to  Instructions. — An  employee 
was  injured  while  bringing  some  goods  from  another  floor  at  the 
direction  of  his  foreman.  There  was  a  notice  in  the  elevator  for- 
bidding anyone  except  the  regular  elevator  operator  to  use  the 
elevator.  The  evidence  tended  to  show  that  it  had  been  custom- 
ary for  other  employees  to  use  the  elevator  when  the  operator 
was  not  at  his  post.  In  the  present  case  the  operator  was  absent, 
and  in  an  attempt  to  use  the  elevator  the  foot  of  the  employee 

24.  State  ex  rel.  Johnson  Sash  &  Door  Co.  v.  District  Court  of  Henni- 
pen  Co.,  140  Minn.  75,  167  N.  W.  283,  16  N.  C.  C.  A.  P21,  2  W.  C.  L.  J.  95, 

25.  Dunbar  v.  Horace  F.  Wood  Transfer  Co.,  Indiana  Ind.  Bd.,  (1916), 
12  N.  C.  C.  A.  250. 

26.  Raynor  v.  Sligh  Furniture  Co.,  180  Mich.  168,  116  N.  W.  665,  4  N. 
C.  C.  A.  851,  L.  R.  A.  1916A  22,  Ann.  Cas.  1916A  386. 

Note:  For  case  on  injuries  suffered  as  the  result  of  an  act  of  a  fellow 
employee  see  titles  "Sportive  Acts'"  §  285  ante,  "Willful  Misconduct,"  § 
283  and  284  ante. 

877 


§  360  WORKMEN'S  COMPENSATION  LAW 

was  crushed.  It  was  held  that  under  the  circumstances  the  acci- 
dent arose  out  of  the  employment.27 

An  employee  was  in  the  habit  of  using  an  elevator  in  the  ad- 
joining portion  of  a  building,  which  he  was  not  supposed  to  use 
in  bringing  materials  to  the  office.  While  there  was  evidence 
tending  to  show  that  the  use  of  the  elevator  was  contrary  to 
orders,  there  was  also  evidence  to  the  effect  that  the  employer 
knew  of  the  practise  and  never  considered  it  of  a  nature  sufficient- 
ly serious  to  merit  a  rebuke.  The  court  affirmed  a  finding  of  the 
commission  to  the  effect  that  the  employer  acquiesced  in  the  cus- 
tom, and  even  though  the  "boy,  who  was  16  years  of  age  and  had 
never  worked  out  before,  may  have  been  somewhat  at  fault,  does 
not  deprive  the  claimant  of  the  right  to  compensation.  N.  Y.  Cen- 
tral R.  Co.  v.  White,  243  U.  S.  188,  37  Sup.  Ct.  247,  61  L.  Ed.  667, 
L.  R.  A.  1917D,  1,  Ann.  Gas.  1917D,  629.  The  presumption  is  that 
the  case  comes  within  the  Workmen's  Compensation  Law,  Sec. 
21  "28 

Where  a  night  watchman  was  found  dying  at  the  bottom  of 
the  shaft  of  an  elevator  which  he  was  forbidden  to  use,  the  court 
held  that  the  evidence  was  insufficient  to  justify  a  conclusion  that 
deceased  was  at  the  elevator  shaft  in  the  performance  of  his 
duties.29 

The  regular  operator  of  an  elevator  was  absent,  and  the  ap- 
plicant secured  an  engine  tender  to  operate  the  lift  in  order  to 
enable  him  to  take  coal  to  the  upper  floors,  and  while  ascending 
his  heel  became  caught  and  was  seriously  injured.  It  was  held 
that  applicant  was  doing  what  he  was  told  to  do,  and  in  getting 
another  employee  to  operate  the  lift  and  not  touching  it  himself 
sufficiently  complied  with  the  instructions  forbidding  him  to  use 
the  lift,  and  therefore  his  injury  arose  out  of  the  employment.30 

27.  Kreutz  v>  R.  Neuman  Hardware  Co.,  37  N.  J.  L.  J.  58.  12  N.  C.  C. 
A.  486. 

28.  Smith  v.  H.  J.  Bartle  Mfg.  Corporation  (1919),  189  App.  Div.  426, 
178  N.  Y.  S.    589,  5  W.  C.  L.  J.  £06. 

29.  Moyer  v.  Packard  Motor  Car  Co.,  (1919),  171  N.  W.  403,  205  Mich. 
503,  3  W.  C.  L.  J.    756,  18  N.  C.  C.  A.  1028. 

30.  Marshall  v.  Joseph  Rodgers  &  Sons  Ltd.,  (1918),  W.  C.  &  Ins.  Rep. 
39,  17  N.  C.  C.  A.  381. 

878 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    361 

Where  an  employee,  engaged  in  operating  an  engine  in  the 
basement,  goes  to  an  upper  floor  and  volunteers  to  take  fellow 
employees  to  a  floor  above  w  an  elevator,  and  is  killed  in  so  doing, 
his  conduct  took  him  outside  the  scope  of  his  employment,  and  an 
injury  so  sustained  did  not  arise  out  of  the  employment.31 

§  361.  Using  Machinery  Other  than  that  Employed  to  Use. — A 
boy  employed  as  a  general  roustabout  in  a  factory  was  subject  to 
orders  from  different  foremen.  On  the  day  of  the  accident  the 
boy  was  set  to  work  making  hoops.  While  so  engaged  another 
foreman  requested  him  to  make  a  box,  and  the  boy  undertook  to 
operate  a  circular  saw  in  preparing  boards  for  the  box,  and  while 
thus  engaged  his  hand  came  in  contact  with  the  saw  sustaining  in- 
juries. "Plaintiff  contends  that  defendant  was  not  acting  with- 
in the  scope  of  his  employment  in  undertaking  to  make  the  boxes; 
that  he  had  no  right  to  undertake  the  operation  of  the  saw ;  and 
that  had  he  followed  the  instructions  of  his  foreman  he  would 
then  have  been  engaged  in  unloading  lumber  from  the  car.  De- 
fendant testifies  that  on  one  or  two  other  occasions  he  had  used 
the  saw  under  instructions  from  Altmann,  and  his  testimony  in 
this  respect  is  not  disputed.  The  record  shows  that  he  was  subject 
to  the  orders  of  different  foremen.  These  several  foremen  may 
have  differed  in  rank,  but  defendant  had  during  his  employment 
taken  orders  from  each  of  them.  He  was  only  a  boy  of  immature 
years.  As  shown  by  the  testimony  quoted  of  the  foreman  who  em- 
ployed him,  it  was  his  duty  to  'do  anything  in  the  line  of  common 
labor  around  the  shop. '  This  being  true,  he  cannot  be  held  to  the 
strict  accountability  of  his  acts.  Accustomed  as  he  was  to  take 
orders  first  from  one  foreman  and  then  from  another,  when  the 
foreman  of  the  oleomargarine  department  signified  his  desire  that 
defendant  make  a  box,  he  might  well  assume  that  it  was  his  duty 
to  obey,  and  that  that  order  countermanded  the  order  given  by  the 
.  other  foreman  earlier- in  the  day  to  assist  in  unloading  the  car  of 
lumber.  It  is  clear  that  he  was  engaged  about  the  premises  where 
his  services  required  his  presence,  during  proper  hours  of  service, 
and  that  his  labor  was  calculated  to  promote  the  master's  business. 

31.     Waters  v.  Wm.  Taylor  Co.,  218  N.  Y.  248,  112  N.  E.  727. 

879 


§•  362  WORKMEN'S  COMPENSATION  LAW 

He  had  theretofore  used  the  saw  under  the  eye,  if  not  under  the 
direction  of  his  immediate  foreman,  Altman,  and  at  the  time  the 
accident  occurred  he  was  carrying  out  the  order,  implied,  if  not 
directly  expressed,  of  one  of  plaintiff's  foremen,  who  stood  watch- 
ing him  as  he  worked."32 

Where  a  night  watchman  was  injured  while  usyag  a  circular 
saw  to  obtain  a  board  to  barricade  a  door,  the  court,  in  annulling 
an  award,  said:  "Assuming  that  it  was  within  the  scope  of  the 
applicant's  employment  to  see  that  the  doors  of  the  premises  were 
properly  secured  by  locking,  nevertheless  we  are  of  the  opinion 
that  his  resort  to  the  use  of  a  circular  saw  for  the  purpose  of 
making  a  board  that  would  answer  the  purpose  of  extending  a;-ross 
the  door  was  entirely  beyond  the  scope  of  his  employment,  and  not 
in  the  contemplation  of  his  employers,  and  was  not  a  resort  to 
reasonable  means  for  the  purpose  of  securing  the  end  intended 
by  him  at  that  time."33 

Where  an  employer  knows  of  and  acquiesces  in  a  practise  among 
employees  of  exchanging  work,  an  injury  sustained,  while'  exchang- 
ing work  with  a  fellow  employee,  arises  out  of  the  employment.34 

§  362.  Volunteers. — An  associate  member  of  a  fire  department 
was  killed  while  assisting  the  chief  engineer  of  the  fire  department 
in  extinguishing  a  fire.  An  associate  member  was  under  no  obliga- 
tion to  respond  to  fire  alarms.  The  city  recognized  the  fact  that 
Cole  was  performing  the  duties  of  an  active  member  and  paid 
the  sum  required  under  the  general  municipal  law.  The  fire  had  oc- 
curred on  the  premises  of  Cole's  employer  and  his  dependents 
sought  compensation  from  the  employer  manufacturing  company 
for  his  death.  The  court,  in  reversing  an  award,  said:  "The 
accident  to  Cole  did  not  arise  out  of  or  in  the  course  of  his  em-, 
ployment,  nor  was  it  incidental  thereto.  The  accident  occurred 

32.  Morris  &  Co.  v.  Gushing,  (1919),  172  N.  W.*691,  103  Neb.  481,  4  W. 
C.  L.  J.  268,  18  N.  C.  C.  A.  1029. 

33.  Brusster  v.  Indus.  Ace.  Comm.,  35  Gal.  App.  81,  169  Pac.  258,  15  N. 
C.  C.  A.  278. 

34.  Sunnyside  Coal  Co.  v.  Indus.  Comm.,  —  111.  — ,    (1920),  126   N.  E. 
196,  5  W.  C.  L.  J.    697. 

Note:    See  "Added  Risks  to  Peril,"  "Emergency,"  "Volunteers." 
880 


ACCIDENT  ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    362 

while  he  was  rendering  services}  as  a  fireman,  and  while  he  was 
subject  to  the  control  and  direction  of  the  chief  engineer  of  thf 
fire  department,  and  not  of  his  employer.  The  fact  that  the  fire 
occurred  on  the  premises  of  hk  employer  was  a  coincidence.  If 
it  had  occurred  elsewhere  the  legal  aspect  of  the  case  would  not 
be  different.  Cole  may  have  responded  more  willingly  because 
the  fire  was  on  his  employers'  premises.  It  is  impossible  to  de- 
termine whether  he  did  or  not.  It  is  immaterial.  No  duty  required 
him  to  act.  No  request  to  do  so  came  from  his  employer.  HLs 
allegiance  and  duty  were  to  the  organization  with  which  he  was 
acting,  and  to  the  orders,  direction,  and  control  of  its  chief 
engineer  alone  he  was  subject.  We  do  not  hold  that  if  the  deceased, 
pursuant  to  a  request  of  his  employer,  had  acted  as  a  fireman, 
with  the  acquiescence  of  the  chief  engineer  of  the  fire  department 
and  subject  to  his  orders,  liability  would  not  exist  on  the  part  of 
the  appellants.  But  such  request  by  the  employer  was  not  ex- 
pressed, and  the  circumstances  clearly  are  not  such  as  to  justify 
an  inference  of  an  implied  request,  even  assuming  that  an  implied 
request  would  create  liability  against  the  appellant."85 

Where  one  employed  to  operate  paint  mixers  volunteered  to  re- 
move a  belt,  which  in  no  way  affected  his  work,  and  in  so  doing 
sustained  injuries,  the  court,  in  holding  that  the  injuries  did  not 
arise  out  of  the  employment,  said:  "In  the  instant  case  deceased 
was  neither  required  nor  expected  to  assist  in  adjusting  this  belt. 
The  foreman  had  called  two  men  to  help,  and  it  is  apparent  no 
more  were  needed.  It  was  merely  a  question  of  time-  until  the  belt 
would  have  been  adjusted.  There  was  no  emergency.  The  condi- 
tion of  that  belt  did  not  affect  the  part  of  the  work  which  deceased 
was  employed  to  do.  Deceased  here  volunteered  his  services,  and 
before  his  foreman  could  command  him  not  to  perform  the  service 
he  had  placed  himself  in  such  a  position  that  he  could  not  save 
himself  from  injury.  A  'volunteer'  is  one  who  introduces  himself 
into  matters  which  do  not  concern  him  and  does  or  undertakes  to 
do  something  which  he  is  not  bound  to  do,  which  he  has  not  been 
in  the  habit  of  doing,  with  his  employer's  knowledge  or  consent, 

35.  Cole  T.  Fleischmann  Mfg.  Co.,  1S9  App.  Div.  306,  178  N.  Y.  S. 
451,  5  W.  C.  L.  J.  95. 

881 
W.  C.— 56 


§>  362  WORKMEN'S  COMPENSATION  LAW 

or  which  is  not  in  pursuance  of  any  interest  of  the  master  and 
which  is  undertaken  in  the  absence  of  any  peril  requiring  him  to 
act  as  on  an  emergency.  As  it  appears  from  the  testimony  of  the 
fellow  employees  of  deceased  that  deceased  was  volunteering  his 
services  and  was  of  his  own  volition  intermeddlingjwith  something 
entirely  outside  the  work  for  which  he  was  employed,  the  judgment 
of  the  circuit  court  must  be  and  is  affirmed."36 

The  third  man  in  attendance  on  a  traction  engine  was  killed 
when  he  fell  from  the  moving  engine  and  was  run  over.  Deceased 
was  cleaning  the  lamps  of  the  engine  at  the  time  of  the  accident. 
In  holding  that  the  accident  did  not  arise  out  of  the  employment, 
the  court  said:  "I  think  that  the  county  court  judge  was  quite 
right.  There  is  unchallenged  evidence  that  it  was  no  part  of  the 
duty  of  a  third  man  to  attend  to  the  lamps.  The  driver  said 
in  his  evidence  that  if  a  lamp  was  burning  dimly  and  the  third 
man  noticed  it,  he  might  tell  the  driver,  who  might  stop  the  engine 
and  then  attend  ta  it  himself,  or  the  third  man  might,  if  they 
stopped  to  do  it.  If  the  deceased  had  been  injured  while  attend- 
ing to  a  lamp  in  such  a  case,  the  accident  would  have  arisen  out 
of  the  employment,  but  the  evidence  does  not  go  to  that.  The 
evidence  is  uncontradicted  that  the  deceased  had  nothing  to  do 
with  the  lamps  or  machinery.  Of  course,  if  it  were  a  case  of  emerg- 
ency or  if  the  man  had  been  asked  to  do  it  by  the  driver,  different 
considerations  would  arise.  I  think  that  the  appeal  must  be  dis- 
missed. '  '37 

A  girl,  while  in  search  of  a  foreman  to  be  definitely  assigned 
to  some  particular  work,  attempted  to  pick  some  loose  threads  from 
a  machine,  a  custom  existing  in  the  plant  and  not  prohibited,  and 
in  doing  so  her  hand  became  caught  and  injured,  necessitating  its 
amputation.  It  appeared  that  the  applicant  had  no  duty  to  cause 
her  to  interfere  with  the  machine  at  which  she  was  injured;  that 
she  was  not  requested  by  the  operators  to  assist  them,  and  there 

36.  George  S.  Mepham  &  Co.  v.  Indus.  Comm.,  (1919),  124  N.  E.  540, 
289  111.  484,  5  W.  C.  L.  J.  36. 

37.  Payne  v.  Curtis  &  Son,  (1915),  W.  C.  &  Ins.  Rep.  501,  15  N.  C.  C. 
A.  273;  Re  Claim  of  Simpson,  Op.  Sol.  Dep.  C.  &  L.  (1915),  316;  Belong  v. 
Krebs,  1  Gal.  I.  A.  C.  D.  592;  Adams  and  Westlake  Co.  v.  Indus.  Comm., 

-  111.  — ,  (1920),  127  N.  E.  168,  6  W.  C.  L.  J.  8. 
882 


ACCIDENT   ARISING   OUT  OP   COURSE  OP   EMPLOYMENT.      §    363 

was  no  necessity  for  her  interference.  The  court  held  that  the 
accident  arose  out  of  the  employment.88 

A  mere  volunteer  in  the  absence  of  any  emergency,  is  not  with 
in  the  protection  of  the  act.30 

In  responding  to  the  request  of  a  servant  for  assistance  in  doing 
his  work,  decedent,  not  an  employee  of  any  of  the  contractors,  was 
not  a  mere  volunteer  or  liscensee,  since  the  servant  had  implied 
authority  to  obtain  such  help  as  was  necessary  for  the  performance 
of  his  master's  work.40 

Where  two  railroads  maintained  parallel  tracks  over  a  crossing, 
and  each  maintained  its  own  flagman  at  the  point,  the  death  of 
one  of  the  flagman,  while  rescuing  a  child  from  the  tracks  of 
the  other  railroad,  did  not  arise  out  of  and  in  the  course  of  the 
employment.41 

"Where  an  engineer  at  a  pumping  station  attempted  to  repair  a 
cross  arm,  which  was  broken  allowing  the  electric  wires  to  sag  to 
the  ground,  he  was  not  a  mere  volunteer,  as  an  emergency  existed 
which  justified  his  conduct.42 

§  363.  Watchmen. — Blasted  stumps  constituted  the  cheapest 
fuel  to  be  secured  and  it  was  cutomary  to  obtain  fuel  in  such 
manner.  A  mine  watchman,  who  had  not  been  forbidden  to  use 
explosives,  was  killed  while  blasting  stumps  for  fuel.  It  was  held 
that  while  deceased  may  have  been  negligent  he  was  not  guilty 
of  such  wilful  misconduct  as  would  preclude  a  recovery.43 

38.  Beattie  v.  Alexander   Tough  &  Sons,    (1917),  W.   C.  &  Ins.  Rep. 
93,  1  Sc.  L.   T.   27,  15  N.  C.  C.  A.   274. 

39.  United  Disposal  and  Recovery  Co.  v.  Indus.  Comm.;    also  United 
Engineering  Co.  v.  Same,  —  111.  — ,  (1920),  126  N.  E.  183,  5  W.  C.  L.  J.  682. 

40.  Sandon  v.  Kendall,  —  Mass.  — ,  123  N.  E.  847,  4  W.  C.  L.  J.  601. 
Note:    See  "Emergency." 

41.  Priglise  v.  Fonda  J.  &  G.  R.  Co.,  183  N.  Y.  App.  Div.  414,  6  W.  C. 
L.    J.    487. 

42.  Young  v.  Miss.  R.  Power  Co.,  —  la.  — ,  (1921),  180  N.  W.  986. 

43.  Ocean  Ace.  &  Guar.  Corp.  Ltd.  v.  Pallaro,  (Colo.),  (1919),  180  Pac. 
95,  4  W.  C.  L.  J.  15. 

883 


§  363  -      WORKMEN'S  COMPENSATION  LAW 

A  watchman  at  a  trench  where  gas  was  escaping  was  found  in 
the  trench  in  the  morning  asphyxiated.  In  holding  that  the  death 
was  due  to  an  accident  arising  out  of  the  employment,  the  court 
said:  "In  such  an  environment  the  natural  presumption  is  that 
the  deceased  met  death  while  engaged  in  his  occupation.  There 
was  no  evidence  that  between  4  and  6  o'clock  in  the  morning  he 
voluntarily  entered  the  trench  for  any  purpose  incompatible  with 
his  duty,  nor  was  there  evidence  that  he  was  non  compos  or  abnormal 
and  unable  to  appreciate  and  realize  the  necessary  incidents  of 
the  danger  which  surrounded  him,  and  to  guard  against  the  mani- 
fest and  inherent  perils  of  which  he  was  enjoined  to  warn  the 
public.  In  the  absence  of  proof  to  that  effect,  the  theory  of  suicide 
must  be  eliminated  from  the  case,  for  the  rule  seems  to  be  settled 
that  whete  a  person  is  found  dead  the  presumptions  are  that  his 
death  was  natural  or  accidental,  unless  the  evidence  shows  him  to 
have  been  insane,  that  suicide  will  not  be  presumed,  and  that  the 
fact  of  death  in  an  unknown  manner  creates  no  such  presump- 
tion."44 

Where  a  night  watchman's  body  was  found  at  the  bottom  of  a 
stairway  of  one  of  the  buildings  which  he  patroled,  the  court, 
reversing  a  finding  that  deceased  was  not  engaged  in  a  hazardous 
employment,  said:  "An  employee  is  injured  while  performing  an 
act  which  is  fairly  incidental  to  the  prosecution  of  a  business  and 
appropriate  in  carrying  it  forward  and  providing  for  its  needs, 
he  or  his  dependents  are  not  to  be  barred  from  recovery  because 
such  act  is  not  a  step  wholly  embraced  in  the  precise  and  character- 
istic process  or  operation  which  has  been  made  the  basis  of  the 
group  in  which  the  employment  is  claimed."45 

Where  a  night  watchman  disappeared  while  on  duty,  and  all 
the  circumstances  at  least  inferentially  pointed  to  murder,  the  court 
said:  "The  burden  was  upon  the  applicant  to  establish  by  com- 
petent proof  the  death  of  Shea.  Doubtless  such  proof  may  be  made 
by  circumstantial  evidence,  and  the  actual  finding  of  the  body  is 

44.  Manziano  v.  Pub.  Serv.  Gas.  Co.,  92  N.  J.   L.   322,  105   Atl.  484,  3 
W.  C.   L.   J.  488. 

45.  Fogarity  v.  National  Biscuit  Co.,  221  N.  Y.  20,  116  N.  E.  346,  16 
N.  C.  C.  A.  639;    Rev'g,  175  N.  Y.  App.  Div.  729,  161  N.  Y.  S.  937;  Kabyra 
v.  Aaams,  162  N.  Y.  S.  269,  14  N.  C.  C.  A.  430,  176  App.  Div.  43. 

884 


ACCIDENT  ARISING  OUT  OP  COURSE  OP  EMPLOYMENT.        §   363 

not  an  indispensable  requisite  to  a  conclusion,  in  a  civil  case,  that 
one  had  met  his  death  by  violence."46 

Where  a  nightwatchman  died  from  heart  failure,  which  was 
accelerated  by  the  excitement  caused  by  the  breaking  out  of  a 
fire  in  the  plant,  the  court,  in  holding  that  the  death  was  due  to  an 
accident  arising  out  of  the  employment,  said:  "In  the  instant 
case  the  whole  circumstances,  including  the  fire,  the  overexertion 
and  the  excitement  of  the  deceased,  may  be  said  to  have  been 
an  accident.  It  certainly  was  a  fortuitous  circumstance.  The  fact 
that  the  man's  condition  predisposed  him  to  such  an  accident  or 
stroke  must  be,  under  the  authorities,  held  to  be  immaterial.  While 
the  exertion  and  excitement  which  accelerated  the  heart  action 
were  not  the  sole,  proximate  cause  of  the  death,  they  were  both 
certainly  concurring  causes."47 

Where  a  night  watchman  obtained  permission  to  leave  his  work 
and  to  take  charge  of  an  engine,  was  struck  by  the  yard  engine  and 
killed,  the  court  held  that  the  watchman  was  away  by  permis- 
sion and  was  not  without  the  scope  of  his  employment,  and  further, 
the  moment  deceased  had  started  in  the  direction  of  the  engine 
he  would  be  again  within  the  ambit  of  his  employment,  even  if  he 
had  left  it  temporarily.48 

Where  a  watchman,  whose  duties  were  to  guard  an  ice  pond  and 
prevent  anyone  from  cutting  holes  therein  for  the  purpose  of 
fishing,  was  drowned  when  the  ice  broke,  it  was  held  that  the  acci- 
dent arose  out  of  his  employment.49 

Where  a  night  watchman  was  wounded  when  his  pistol  fell  from 
its  holster  and  discharged,,  the  court  held  that,  since  deceased 
was  engaged  in  chasing  away  tresspassers  from  a  train  engaged  in 
interstate  commerce,  he  was  at  that  time  engaged  in  interstate 

46.  Western  Grain  &  Sugar  Co.  v.  Pillsbury,  173  Cal.  135,  159  Pac.  423, 
14  N.  C.  C.  A.  430. 

47.  Schroetke  v.  Jackson  Church  Co.,  193  Mich.  616,  160  N.  W.  383,  16 
N.  C.  C.  A.  636. 

48.  Conyea  v.  Canadian  Northern  R.  Co.,  5  Western  Weekly  Rep.  607 
(1913),  12  N.  C.  C.  A.  898. 

49.  Jillson  v.  Ross,  38  R.  I.  145,  94  Atl.  717. 

885 


§  364  WORKMEN'S  COMPENSATION  LAW 

commerce,  and  not  within  the  protection  of  the  compensation 
act.50 

Where  proof  was  offered  that  an  injury  to  a  railroad  yard 
watchman  occurred  in  the  place  he  would  be  while  performing  his 
special  duty  of  watching  for  thieves  on  an  interstate  train,  this 
is  not  inconsistent  with  his  then  being  engaged  in  his  general 
duties  of  watchman,  and  the  burden  of  proving  that  he  was  en- 
gaged in  interstate  commerce  rests  upon  the  employer  seeking  to 
escape  liability  under  the  workmen's  compensation  act.51 

Where  an  employer  knew  that  the  paymaster  kept  a  pistol,  and 
failed  to  require  that  the  pistol  be  kept  out  of  sight  of  a  fifteen 
year  old  errand  boy,  injuries  to  a  watchman,  through  the  acci- 
dental discharge  of  the  pistol  while  the  boy  was  playing  with  it 
was  due  to  a  risk  of  the  employment.52 

§  364.  Window  Cleaner  Falling  From  Ledge. — A  porter  in 
a  saloon  was  injured  when  he  fell  from  a  second  story  window, 
which  he  was  cleaning  in  the  apartment  of  his  employer.  The 
regular  duties  of  the  porter  did  not  include  the  cleaning  of  the 
apartment  windows,  and  when  he  did  clean  such  windows  he 
received  compensation  for  it  separate  from  his  regular  salary. 
The  board  held  that  he  was  doubly  excluded  from  the  pro- 
tection of  the  act,  for  he  was  a  casual  employee,  and  not  per- 
forming duties  in  connection  with  the  line  of  business  of  the  em- 
ployer at  the  time  of  the  injury.54 

A  window  cleaner  fell  while  passing  from  one  window  to  an- 
other by  means  of  a  narrow  ledge  on  the  outside,  instead  of  going 
inside  in  safety.  It  was  held  that  the  accident  arose  out  of  the 
employment.55 

50.  Smith  v.    Indus.  Ace.  Comm.,    26    Cal.  App.  560,  147  Pac.  600,    8 
N.  C.  C.  A.  1065. 

51.  Atchison  T.  &  S.  F.  Ry.  Co.  v.  Indus.  Comm.,  290,  111.   590,  125  N. 
E.  380,   (1919),  5  W.  C.  L.  J.  364. 

52.  Marohiatello  v    Lynch    Realty    Co.,  --    Conn.  — ,  108  Atl.  799,  5 
W.  C.  L.  J.  498. 

54.  Castellotti  v.  McDonald,   1  Cal.  I.  A.  C.  351,   11  N.  C.  C.  A.   375. 

55.  Bull  worthy  v.  Glanfield,   (1914),  7  B.  W.  C.  C.  191. 

886 


ACCIDENT  ARISING   OUT  OP  COURSE  OP   EMPLOYMENT.      §    364 

Where  a  janitor  employed  by  the  city  of  Boston  was  required  to 
perform  duties  ranging  from  window  washer  to  fireman  of  the 
boiler,  and  was  injured  when  he  fell  from  a  window  ledge  while 
engaged  in  washing  a  window,  the  court  held  that  in  determining 
whether  a  janitor  is  a  laborer,  mechanic,  etc.,  within  the  Mas- 
sachusetts Act,  the  specific  duties  of  the  particular  janitor  in  ques- 
tion must  be  considered,  and  a  finding  that  this  janitor  came  with- 
in the  class  of  laborers  entitled  to  the  protection  of  the  act  when 
injured  in  the  course  of  his  employment  was,  in  view  of  the  evi- 
dence, justifiable.66 

56.     White's  Case,  226  Mass.  517,  116  N.  E.  481,  14  N.  C.  C.  A.  951. 


S.S7 


.    -  CHAPTER  VII. 

DEATH'S  BENEFITS,  FUNEBAL  EXPENSES  AND  DEPENDENCY. 

Sec. 

365.  Death  Benefits. 

366.  Funeral  Expenses. 

DEPENDENTS. 

367.  Who  Are  Dependents  and  What  Constitutes  Dependency. 

368.  Presumption  Relating  to  Dependency. 

369.  Wife  Living  Apart  From  Husband. 

370.  Dependency  and  Matters  Relative  Thereto  as  Question  of  Law  or 

Fact. 

371.  Partial  Dependents. 

372.  Total  Dependents. 

373.  Dependency  of  Parents,  Grandparents,  and  Other  Relatives  of  De- 

ceased Workmen. 

374.  What  Children  May  Be  Dependents. 

375.  Alien  Dependents,  and  Constitutionality  of  Provisions  Pertaining  to 

Aliens. 

376.  Illegal  and  Divorced  Wives. 

377.  Desertion  and  Non-support. 

378.  Marriage  or  Remarriage  of  Dependent. 

379.  Rights  of  Dependents  Independent  of  the  Rights  of  Deceased,  and 

Third  Parties. 

380.  Death  of  Beneficiaries  or  of  an  Employee  Before  the  Period  For 

Which  an  Award  Has  Been  Made  Has  Elapsed. 

381.  Absence  of  Dependents. 

382.  Inheriting  From  the  Estate  of  Deceased  or  Receiving  Benefits  From 

Other  Sources. 

383.  Claim  for  Compensation  by  the  Personal  Representative  or  Adminis- 

trator. 

384.  Dependent  of  More  Than  One  Workman. 

385.  Submitting  to  an  Operation. 

386.  Estopped  to  Dispute  Claim  of  Dependents  After  Deceased's  Death. 

387.  Necessity  of  Administrating  Upon  Estate  of  Workman. 

388.  Divisi       of  Compensation  Between  Dependents — Double  Compensa- 

tion. 

389.  Deductions. 

390.  Evidence. 

391.  Burden  of  Proof. 

392.  Guardians. 

393.  Dependency  Under  the  Federal  Act. 

394.  Adoption  Under  the  Federal  Act. 
888 


DEATH  BENEFITS,  FUNERAL  EXPENSES  AND  DEPENDENCY.          §   365 

Sec. 

395.  To  Whom  Compensation  of  Children  With  a  Surviving  Parent  is 

Paid. 

396.  Illegitimate  Children. 

397.  Who  Is  the  Widow  of  an  Employee. 

§  365.  Death  Benefits.— The  English  act  provides  that  the 
amount  payable  to  dependents,  in  case  of  death,  must  be  reason- 
able and  proportionate  to  their  injury,  and  the  exact  amount  is 
to  be  determined  for  each  case  by  the  arbitration  committee.  This 
language  required  English  courts,  in  cases  of  partial  dependency, 
to  inquire  whether  the  deceased  was  a  financial  asset  and  whether 
his  death  was  a  financial  injury  to  the  dependents.1 

In  the  United  States  the  methods  provided  for  determining 
compensation  for  death  vary  considerably,  and  do  not  in  all  cases 
depend  upon  the  fact  that  the  deceased  was  an  actual  financial 
benefit  to  his  dependents.  It  is  sufficient  under  some  acts  that  at 
the  time  of  the  injury,  there  were  parties  receiving  his  earnings 
So  it  has  been  held  under  the  Connecticut  act  that  if  the  depend- 
ent was  legally  entitled  to  the  wages  of  a  minor  or  actually  received 
his  wages,  it  was  immarterial  that  the  cost  of  the  minor's  support 
used  up  all  of  his  contributions.2 

The  benefits  for  death  in  many  cases  in  the  United  States  are 
based  upon  the  annual  earnings  of  the  deceased,  and  in  most  eas- 
es approximate  three  or  four  years  of  the  deceased  employee's 
earnings.  Alaska  and  "Wyoming  provide  for  fixed  amounts  with- 
out any  reference  to  wages.8 

Porto  Rico  provides  for  $1500.00  plus  75#  of  wages  for  208 
weeks.4  Five  states  provide  for  annual  earnings  for  three  or  four 
years.5  The  majority  of  states  apply  a  wage  percentage  for  speci- 

1.  Hodgson  v.    Owners    of    West  Stanley   Colliery,   (1910),  3   1).    W 
C.  C.  260. 

2.  Mahoney    v.  Gamble-Desmond    Co.,  90     Conn.    255,    96  All.    1025; 
Koether  v.    Union  Hdw.    Co.,  1  Conn.  Comp.  D.  38;    Metal    Stampings 
Corp.   v.    Indus.  Comm.,  286  111.  528,    121  N.  ti.  258.  3    W.  C.    L.  J.  258; 
In  re  Peters,  64  Ind.  App.— ,  116  N.  E.  848,  16  N.  C.  C.  A.  183. 

3.  Alaska  and   Wyoming.   4.    Porto  Ktco.  5.     California,  Kansas,  and 
New    Hampshire,  for  3    years;     Illinois    and    Wisconsin    for  4     years. 

889 


§  365  WORKMEN'S  COMPENSATION  LAW 

fied  periods.  Of  these,  one*  pays  compensation  for  260  weeks,  one7 
pays  for  270  weeks,  ten  pay  for  300  weeks,8  four  for  312  weeks,9 
one  pays  for  335,10  one  for  350  weeks,11  one  for  360  weeks,12  five 
pay  for  400  weeks;13  three  pay  for  416  weeks14  and  one  pays  500 
weeks.15  Four  states  provide  for  benefits  until  the  death  or  re- 
marriage of  the  widow  or  dependent  or  invalid  widower.16  The 
Oklahoma  law  does  not  cover  fatal  accidents. 

Most  states  provide  for  a  uniform  rate  in  death  cases,  but  in 
18  states  the  compensation  varies  with  conjugal  conditions  and 
the  number  of  children,  the  percentage,  ranging  from  10  to 
66%  percent  of  the  average  weekly  wages  of  the  deceased  em- 
ployee1.17 Where  there  are  provisions  for  children  as  beneficiaries, 
the  payments  in  their  behalf  usually  terminate  on  their  reaching 
the  age  of  16  or  18  years,  but  many  of  these  provide  that  the  pay- 
ments will  not  cease  at  the1  ages  named  if  the  recipient  is  phy- 
sically or  mentally  incapacitated  from  earning  a  livelihood. 

The  remarriage  of  a  widow  is  made  to  terminate  the  benefits 
in  a  number  of  states,18  though  in  a  few  instances  a  lump  sum  is 
payable  on  such  remarriage,19  If  the  benificiary  is  a  dependent 
widower  provision  is  made  in  two  states  for  a  similiar  allowance 
in  case  of  remarriage,20  in  one  state  if  there  are  children,21  and 

6.  Vermont,  7.  Delaware.  8.  Indiana,  Iowa,  Louisiana,  Maine,  Michigan, 
Minnesota,  New  Jersey,  New  Mexico,  Pennsylvania,  and  Rhode  Island. 
9.  Colorado,  Connecticut,  Hawaii  and  Utah.  10  Kentucky.  11. 
Nebraska,  12,  Texas,  13,  Nevada,  Arizona,  Tenessee,  Idaho  &  Mon- 
tana. 14.  Maryland,  Ohio  &  South  Dakota.  15.  Massachusetts.  16. 
New  York,  Oregon,  Washington,  and  West  Virginia. 

17.  Alaska,    Deleware,     Hawaii,   Idaho,     Illinois,    Louisiana,    Minne- 
sota, Montana,  Nevada,    New  Jersey,  New  Mexico,  New  York,  Oregon, 
Pennsylvania,    Vermont,  Washington.  West    Virginia,    and   Wyoming. 

18.  Kansas,    Indiana,  Kentucky,  Louisiana,  Nevada,  New  Jersy,  New 
Mexico,  New   York,  Oregon,  Pennsylvania,  Vermont,    Washington,    West 
Virginia    and  United     States.     Minnesota    and  Nebraska    if  there    are 
children,   and    Maryland    unless  there  are  dependent   children. 

19.  New  York,  Washington,  Wyoming.     In  Colorado    and   Minnesota 
a  lump  sum  is  allowed  if  there  are  no  children. 

20.  New  York  and  Wyoming. 

21.  Nebraska. 

890 


DEATH  BENEFITS,  PLNKKAI.  EXPENSES  AND  DEPENDENCY.      §    365 

in  one  state  payments  cease  unless  there  are  dependent  children 
One  state  provides  for  cessation  of  payments  to  a  dependent  hus- 
band upon  his  becoming  capable  of  self  support.28 

In  the  acts  <>!'  the  states  mentioned  in  the  foot  note  hereto  pro- 
vision is  made  for  termination  of  payments  upon  the  beneficiary's 
death,  or  attaining  the  age  of  16  or  18  years.24  Many  states  pro- 
vide that  in  ease  a  benificiary  becomes  disentitled  to  a  continuance 
of  the  compensation,  his  share  will  go  to  the  remaining  depen- 
dents Six  states  provide  that  if  death  is  due  to  any  other  cause 
than  the  original  injury  all  further  liability  for  compensation 
ceases.20  One  state  provides  that  the  commission  has  authority  to 
apportion  benefit  payments  according  to  need  and  equity  regard- 
less of  priority.27 

.Minnesota  follows  the  British  Act  very  closely,  in  that  depend- 
ants receive  a  percentage  income  based  upon  their  pecuniary 
loss,'28  and  the  salary  actually  received  by  the  employee  at  the 
time  of  his  death  represents  such  loss.  Under  a,n  express  provision 
of  the  New  York  Act.  the  probable  increase  of  minor's  wages  had 
he  lived,  may  be  considered.29 

The  death  must  result  from  the  injury  in  order  that  depend- 
ents may  be  entitled  to  compensation,  therefore  where  an  employee 

22.  Maryland. 

23.  Louisiana. 

24.  Indiana,    Kanasa,    Kentucky,      Louisiana,     Maryland,     Minnesota. 
Montana,    Nebraska,    Nevada,   New    Jersey,     New   Mexico,    New     York, 
Oregon,  Pennsylvania,  Vermont,  Washington,  West  Virginia  and    United 
States. 

25.  Conecticut,   Delaware,     Hawaii,    Idaho,    Indiana,    Iowa,    Kentucky, 
Louisiana,  Maine,  Michigan,    Minnesota,   Nebraska,    Pennsylvania,    Ver- 
mont,  Washington    and   Colorado   to   personal    representative   or   other 
dependents. 

26.  Iowa,     Kansas,     Michigan,    Montana,     Pennsylvania    and     Rhode 
Island. 

27.  California. 

28.  State  ex   rel.   Gaylord  Farmer's    Co.-Op.  Creamery  Ass'n.    v.  Dis- 
trict Court,  128  Minn.  486,  151  N.   W.  182,  9   N.  C.  C.   A.  86. 

29.  Kilberg  v.  Vitch,  171  App.  Div.  89,  156   N.  Y.  Supp.  971 ;  Western 
Pac.  R.  Co.  v.  Indus  Com., — Cal. — ,   181   Pac.  787,   4  W.  C.  L.  J.  348; 

891 


§  366  WORKMEN'S  COMPENSATION  LAW 

was  awarded  one  hundred  weeks  compensation  but  died  from  oth- 
er causes  before  receiving  all  of  the  payments,  his  dependents  were 
not  entitled  to  compensation.80 

Death  must  occur  within  one  year  from  the  date  of  the  accident 
to  entitle  deceased's  survivors  to  a  right  of  action  under  the  Lou- 
isiana act.31 

Where  there  is  no  voluntary  payment  on  the  part  of  the  em- 
ployer, the  Industrial  Commission  in  determining  the  Compensa- 
tion payable  should  also  determine  the  persons  entitled  to  compen- 
sation as  a  result  of  the  deceased's  death.32. 

§  366.  Funeral  Expenses. — With  one  exception  the  acts  of  all 
the  states  provide  a  definite  maximum  amount  for  funeral  expense 
varying  from  $75  to  $150  and  in  some  states  a  maximum  of  $100 
or  $200  is  allowed  for  the  combined  expense  of  last  illness  and 
burial.S2a 

Under  the  New  York  Workman's  Compensation  act,  allowing 
for  reasonable  funeral  expenses  not  exceeding  one  hundred  dollars, 
a  claim  by  a  relative  for  services  rendered  in  connection  with  the 

Hyman  Bros.  Box  &  Label  Co.,  v.  Indus  Com.,— Gal. — ,  181  Pac.  784, 
4  W.  C.  L.  J.  343. 

30.  U.  S.  F.  &  G.  Co.  v.  Salser,  —  Tex.  Civ.  App.  — ,  (1920),  224  S.  W. 
557  6  W.  C.  L.  J.  716;    Heiselt  Const.  Co.    v.  Indus.  Comm.;— Utah- , 
(1921),  197  .Pac.  589. 

31.  Monvoisin  v.  Plant,  —  La.  — ,  (1920),  85  So.  206,  6  W.  C.  C.  J.  448. 

Note:  For  death  benefits  and  dependency  see  the  following  sec- 
tions of  the  respective  acts;  7,  8g,  21,  24  of  Illinois  Act;  Sees.  36,  37 
38,  40  of  Indiana  Act.  See's  2477-m  9c,  d,  e,  f,  and  2477-m  10  of  Iowa 
Act;  Sees  5905  of  Kansas  Act;  See's  12,  13,  15,  of  Kentucky;  Sec. 
8,  (1)  (f)  of  Louisana  Act;  Sees.  4f,  51,  57,  58,  sec.  4f,  6,  8,  of  Col- 
orado Act;  Part  2,  Sec.  5,  8,  12,  of  Michigan,  Act;  (Sec.  8207f,  8208 
(4-19)  of  Minnesota  Act;  (3693  Sec.  143  b),  (3663  Sec.  113)  (2664 
Sec.  114)  and  (3665  Sec.  115d)  of  Nebraska  Act.  Sec.  23  &  24g  of  South 
Dakota  Act;  Sec.  2394-9  of  Wisconsin  Act,  Sec.  10  &  11  of  United  States 
Act,  Sec.  25,  28f  &  30  of  Tennessee  Act. 

32.  Henry   Pratt  Co.   v.   Indus.   Comm.,  —111.—,    (1920),   127   N.    E. 
754,  6    W.  C.  L.  J.  296;    Smith-Lohr  Coal  Mining  Co.  v.    Indus.   Comm., 
286  111.  34,  m  N.  E.  231;    Keller   v.  Indus.  Com,  291  111.    314. 

32a.  Col.,  Ky.,  Md.,  Mont.,  N.  M.,  $75;  Ala.,  Gal.,  Conn.,  Hawaii,  Idaho, 
Ind.,  la.,  N.  J.,  N.  Y.,  N.  D.,  Or.,  Tenn.,  $100;  Alaska,  111.,  Kan.,  Mo., 
Nebr.,  Ohio,  S.  D.,  Utah,  $150.  Last  illness  and  burial  expense  Del.,  La., 
Mass.,  Minn.,  N.  H.,  Pa.,  Tex.  $100  and  Me.,  Mich.,  and  R.  I.,  $200.  Ari- 
zona reasonable  amount.  Porto  Rico  no  provision. 
892 


DEATH  liKNKKlTS,  FUNERAL  EXPENSES  AND  DEPENDENCY.      §    366 

burial  will  not  be  allowed,  where  claimant  had  not  expended  any 


::  : 


moneys 

Under  Sec.  22  of  the  California  Workmen's  Compensation  Act, 
providing  that  jurisdiction  of  the  commission  is  obtained  upon  fil- 
ing of  an  application  in  writing  by  a  party  interested,  stating  the 
nature  of  the  controversy,  or  concerning  any  liability  arising  out 
of  or  incident  thereto,  where  no  application  was  at  any  time  made 
by  one  not  related  to  deceased  servant  for  reimbursement  for  funer- 
al expenses  paid  by  him  in  the  burial  of  deceased,  the  commission 
had  no  jurisdiction  to  make  an  allowance  therefor  on  the  ground 
that  it  appeared  that  such  third  person,  a  stranger  to  the  record, 
had  made  such  disbursement.82 

In  a  proceeding  under  the  New  Jersey  Workmen 's  Compensation 
Act,  amended  in  1913,  to  obtain  compensation  for  the  death  of  an 
employee  who  left  actual  dependents,  it  was  held  error  to  make 
an  allowance  for  funeral  expenses.85 

But  the  New  Jersey  Act  as  amended  in  1914,  provides  that  ''if 
death  results  from  the  accident,  whether  there  be  dependents  or 
not,  expenses  of  last  sickness  and  burial  are  to  be  allowed,  the 
cost  of  burial  however  not  to  exceed  one  hundred  dollars. 

Under  the  English  Workmen's  Compensation  Act  the  reasonable 
expenses  incurred  in  the  burial  of  deceased  may  be  allowed,  ex- 
cept in  cases  of  total  dependency,  where  the  amount  is  arbitrarily 
determined  by  the  compensation  schedule.88 

Where  the  statute  provides  for  funeral  expenses,  it  does  not 
thereby  authorize  the  employer  to  contract  for  and  limit  the 
amount  to  be  expended  by  the  family,  as  these  are  matters  to  be 
determined  by  the  relatives  of  deceased.37 

33.  Tierre  v.  Bush,  etc.  Co.,   172  App.  Dlv.  386,  158   N.    Y.  Supp.  88 3. 

34.  Western   Indemnity  Co.   v.   Indus.  Ace.  Comm.,  35,  104,  169  Pac. 
261,  1  W.  C.   L.  J.   300,  16  N.  C.  C.  A.  816. 

35.  Taylor  et  al.  v.  Seabrook,  87  N.   J.    L.  407  »4   Atl.   3»»,  11    N.  C. 
C.  A.  710. 

3B.  Bevan  v.  Drawshay  Bros.  Ltd.,  (1902),  1  K.  B.  25,  71  L.  J.  K. 
B.  45),  85  L.  T.  496,  18  T.  L,.  K.  17,  4  W.  C.  C.  110. 

37.  Konkel  v.  Ford  Motor  Co.,  Mien.,  ind.  Ace.  Bull  (Mo.  3)  2«,  11 
N.  C.  C.  A.  716. 

893 


§  366  •   WORKMEN'S  COMPENSATION  LAW. 

Where  funeral  expenses  exceeding  the  statutory  amount  had 
been  paid  by  parties  other  than  the  applicant,  the  commission  held 
that  the  claim  for  the  funeral  expenses  would  not  be  recognized  as 
a  lien  upon  the  award.38 

The  Oklahoma  Act  does  not  apply  to  an  accident  resulting  in 
death  (Art.  6  Sec.  1).  This  ommission  was  necessary  to  avoid 
a  conflict  with  the  state  constitution/"9 

The  following,  decisions  have  been  rendered  by  the  California 
Commission  in  cases  involving  burial  expenses.  In  cases  of  partial 
dependency,  where  the  total  award  does,  not  exceed  three  times 
the  average  annual  earnings,  burial  expenses  not  exceeding  $100 
should  be  charged  against  the  employer,  and  not  against  the  death 
benefit  awarded  to  the  partial  dependent  under  Sec.  15  (c)  of  the 
California  Act,  as  amended.40 

The  entire  burial  expense  cannot  exceed  $100,  except  on  con- 
sent of  the  person  entitled  to  the  death  benefit;41  and  when  de- 
pendency is  total,  the  burial  expenses  are  to  be  paid  out  of  the 
award,  at  the  time  of  making  such  award,  either  to  the  person  to 
whom  the  award  is  made  or  to  the  one  entitled  to  receive  the  funeral 
expenses.42 

Since  the  award  includes  the  burial  expenses,  an  employer  who 
has  paid  the  expenses  of  burial  has  a  lien  upon  the  award  for 
reimbursement  for  the  sum  advanced.43 

Funeral  expenses  are  payable  in  cases  of  partial  dependency 
under  the  California  Act.44 

And  where  there  is  no  one  who  can  claim  compensation,  the  Com- 
mission has  authority  to  adjust  a  claim  made  by  an  undertaker  for 
expenses  incurred  in  burial.45 

38.  Hefferman   v.   Morse   Detective   &    Patrol    Service    Co.,    2   Gal.     1. 
A.   C.   364    (1915),  11  N.  C.  C.  A.  717. 

39.  Lahoma    Oil    Co.    v.    State     Industrial    Commission, — Ukl. — ,     17o 
Pac.   836. 

40.  Werly  v.   Pacific   Gas.  Co.,   (1916),  3  Cal.  Ind.  Ace.  Com.  254. 

41.  Sigman  v.  Columbia    Oil  Producing    Co.,  3  Cal.   1.  A.   C.   2. 

42.  Fynchon  v.  Ernest   Higgins    Co.,    (1916),  3  Cal.  1.  A.  C.  286. 

43.  Cleveland  v.  Hastings  2  Cal.  I.  A.  C.  18. 

44.  Newman  v.  Casper  Lbr.  Co.,  3  Cal.  I.  A.  C.  102. 

45.  H.  F.  Suhr  &  Co.  v.  State  Compensation  Insurance  Fund.,  2  Cal. 
I.  A.  C.  717. 

894 


DEATH  BENEFITS,  FUNERAL  EXPENSES  AND  DEPENDENCY.      §    366 

Twenty-seven  states  provide  for  burial  expenses  in  case  the  re- 
ceased  leaves  dependents,40  and  all  of  the  states,  except  two,47 
make  similar  provision  in  case  of  no  dependents.  In  the  latter  event 
the  entire  liability  of  the  employer  is  limited  to  such  burial  expenses, 
except  in  four  states.48  In  Idaho  $1000  additional  must  be  paid 
into  the  industrial  administration  fund;  in  Kentucky  $100  addi- 
tional must  be  paid  to  the  personal  representative  of  the  employee ; 
in  \ew  York  $100  additional  is  required  for  the  creation  of  a 
special  fund,  from  which  are  to  be  paid  benefits  to  the  employees 
who  sustain  successive  major  injuries,  and  in  Utah  $750  additional 
must  be  paid  into  the  state  insurance  fund  if  the  employer  is  not 
insured  in  the  fund. 

The  payment  of  funeral  expenses  by  an  employer  with  the  under- 
standing that  there  were  no  dependents  in  no  way  affects  his  lia- 
bility.40 Under  the  Federal  Act  funeral  expenses,  like  medical  and 
hospital  expenses,  are  chargeable  against  the  amount  recovered 
and  are  not  to  be  charged  against  the  employer  in  addition  to  the 
award.80  The  allowing  of  funeral  expenses  under  the  Federal  'Act 
is  discretionary  with  the  commission,  therefore,  where  these  ex- 
penses are  paid  by  friends  of  the  deceased  at  the  place  where  he 
worked,  there  will  be  no  allowance  to  the  relatives  of  the  deceased.41 
Although  the  statute  provides  for  funeral  expenses  not  to  exceed 
$100,  in  a  case  where  it  was  necessary  to  provide  a  hermitically 
sealed  coffin  the  commission  allowed  $140.25.25 

46.  Connecticut,  Delaware,  Georgia,  Hawaii,  Idaho,  Indiana,  Iowa,  Ken- 
tucky, Louisana,  Maryland,  Minnesota,  Montana,  Nebraska,  Nevada,  New 
Jersey,  New  Mexico,  New  York,  Ohio,  Oregon,  Pennsylvania,  Porto  Rico, 
Utah,  Vermont,  Washington,  West  Virginia,  Wisconsin  and  Wyoming. 

47.  Porto  Rico  and  Oklahoma. 

48.  Idaho,  Kentucky,  New  York  and   Utah. 

49.  Northrn   Redwood    Lbr.   Co.   v.    Indus.   Comm.   — ,   Cal.   App.   — , 
166  Pac.  828,  A  1  W.  C.  L.  J.  267. 

50.  In  re  Geo.  W.  Drummond,  3rd  A.  R.  U.  8.  C.  C.  97. 

51.  In  re  Kathryn  Mahoney  2nd  A.  R.  U.  S.  C.  C.  63. 

52.  In  re  Frederick  A.  Jordan,  2nd  A.  R.  U.  S.  C.  C.  63. 

895 


§  367  WORKMEN'S  COMPENSATION  LAW 

DEPENDENTS. 

§  367.  Who  are  Dependents  and  what  Constitutes  Dependency. 

—The  acts  generally  set  forth  the  classes  of  persons  entitled  to 
claim  compensation  as  dependents.  It  is  therefore  essential  that 
the  act,  under  which  rights  are  claimed,  be  examined.  Those  de- 
cisions of  the  courts  construing  the  provisions  of  the  statutes  re- 
lative to  who  are  dependents  and  what  constitutes  dependency, 
which  differ  somewhat  lender  the  different  state  acts,  will  be  found 
through  out  this  chapter  under  their  respective  classifications. 

A  constitutional  provision  authorizing  the  legislature  to  enact 
laws  "providing  compensation  to  employees,"  must  be  construed 
to  authorize  laws  not  only  giving  compensation  to  employees  them- 
selves, but  also  to  their  dependents.53 

No  exact  standard  for  the  determination  of  dependency  is  pres- 
cribed by  statute  and  it  is  difficult,  if  not  impossible,  to  frame  a 
definition  which  will  include  the  varying  conditions  under  which 
dependency  may  exist.54 

However,  the  statutes  enumerate  who  shall  be  presumed  to  be 
dependents,  also  who  may  be  dependent  when  actually  depending 
upon  deceased  for  support  and  one  claiming  dependency  must 
bring  himself  within  one  of  the  classes  enumerated  by  the  statute 
under  which  he  claims,  otherwise  the  fact  that  the  party  was  re- 
ceiving support  from  decedent  will  not  make  him  a  dependent.55 

It  has  been  held  in  California  that  in  order  that  dependency  of 
certain  persons  may  be  established  it  is  immaterial  whether  their 
maintenance  has  been  voluntarily  and  gratuitously  assumed  or  is 
legally  imposed;  and  the  legislative  discretion  to  determine  what 
dependents  shall  become  distributees  of  the  indemnity  is  not  meas- 

53.  Western    Metal   Supply    Co.  v.    Pillsbury,   172  Cal.    407,  Am.    Cas. 
1917E,  390,  156  Pac.  491;  In  re  Nelson,  217  Mass.  467,  105  N.  E.  357. 

54.  Miller  v.  Riverside  Storage  Co.,  189  Mich.  360,  155  N.  W.  462. 

55.  Berger   v.   Thomas   Oakes   &    Co.,   39   N.  J.   L.   J.  296,   13   N.    C. 
C.  A.  468;    Drummond  v.  Isbell-Porter  Co.,  177  N.  Y.  S.  525,  188  N.  Y.  App. 
Div.  374;  4  W.  C.  L.  J.  535,  (1919);  Benjamin  F.  Shaw  Co.  v.  Palmatory, 
—  Del.  — ,  (1919),  105  Atl.  417,  3  W.  C.  L.  J.  424;  Bonnano  v.  Metz  Bros., 
188  N.  Y.  App.  Div.  380,  177  N.  Y.  Supp.  51,  (1919),  4  W.  C.  L.  J.  427; 
Birmingham  v.  Westinghuos  Electric  Mfg.  Co.,  180  App.  Div.  48,  168  N.  Y. 
Supp.  520,  16  N.  C.  C.  A.  189;   In  re  Derinza,  229  Mass.  435,  118  N.  E. 
942,  1  W.  C.  L.  J.  795,  16  N.  C.  C.  A.  87. 

896 


DEPENDENCY.  §    367 

ured  by  the  analogies  of  the  Common  Law,  or  the  limitations  of 
compensation  acts  in  force  at  the  time  the  constitutional  provision 
was  adopted  authorizing  the  Legislature  to  enact  a  compensation 
act.08 

Dependency  being  a  question  of  fact,  at  least  until  the  facts  are 
found,  and  the  facts  as  varied  as  the  number  of  cases,  each  caso 
must  be  decided  upon  its  own  facts.  The  first  question  to  be  de- 
termined is  whether  or  not  the  claimant  suffered  loss  in  respect  to 
his  or  her  support  or  maintenance.  This  being  found  in  the  affrma- 
tive,  it  is  then  necessary  to  determine  whether  or  not  the  claimant 
was  entitled,  legally  or  morally,  to  consider  the  contributions  re- 
ceived from  deceased  as  a  part  of  his  or  her  necessary  livelihood ; 
that  is,  whether  such  contributions  formed  a  part  of  the  sort  of 
support  to  which  the  claimant,  within  considerable  radius  of  rea- 
son was  entitled.  "While  no  exact  standard  of  living  can  be  fixed  to 
a  certainty  for  any  given  class,  still  some  standard  is  necessarv.  If 
a  janitress  expended  all  the  contributions  received  from  a  son  on  a 
wardrobe  of  silks,no  one  would  likely  contend  that  she  was  enti- 
tled to  do  so,  and  that  such  contributions  were  a  necessary  part  of 
her  support4  at  least,  not  to  the  full  amount  of  the  contributions. 
On  the  other  hand,  a  little  more  latitude  might  be  allowed  a  stenog- 
rapher, or  other  persons  whose  employment  or  station  in  life  re- 
quire better  clothes.  However,  the  fact  that  some  persons  in  the 
same  class  of  employment  and  same  degree  of  refinement  live  inde- 
pendently on  less  than  the  independent  income  of  the  claimant, 
aside  from  the  contributions  received  from  the  deceased,  is  not  de- 
cisive of  the  question  of  the  claimant's  dependency.  Hence,  in 
establishing  a  standard  of  living  as  a  test,  it  is  necessary  to  give  it 
considerable  elasticity ;  and  this  was  probably  the  intention  of  the 
legislatures  of  the  various  states  when  they  placed  such  questions 
within  the  discretion  of  the  boards  and  commissions  for  determi- 
nation. 

The  legal  obligation  of  a  husband  to  support  his  wife,  the  claim- 
ant, the  probability  that  it  would  have  been  discharged  either 
voluntarily  or  under  compulsion,  the  probability  that  the  wife 

56.  Moore  Shipbuilding  Corp.  v.  Indus.  Comm.,  —  Cal.  — ,  (1921),  196 
Pac.  257. 

897 
W.  C.  57 


§  367  WORKMEN'S  COMPENSATION  LAW 

would  have  enforced  her  right  if  the  obligation  had  not  been  dis- 
charged voluntarily  are  matters  of  proper  consideration  in  de- 
termining whether  or  not  the  wife,  at  the  time  of  the  husband's 
injury,  looked  to  his  earnings  for  her  support." 

Dependency  under  the  Utah  act,  and  under  most  other  acts  is 
to  be  determined  upon  the  facts  as  they  existed  at  the  time  of  the 
injury. 58  But  despite  this  provision  a  woman  is  entitled  to  com- 
pensation even  though  her  marriage  occurred  subsequently  to  the 
date  of  the  injury,  which  resulted  in  her  husbands  death  for  her 
right  under  the  act  is  based,  not  on  her  dependency  but  on  her 
wifehood.69  The  British  Act  makes  dependency  a  question  of  fact 
in  all  cases.60 

Tinder  the  New  York  Act,  where  dependency  was  established, 
an  award  amounting  to  more  than  the  contributions  of  deceased  to 
his  dependent  mother,  brothers  and  sisters  was  held  to  be  author- 
ized. 61 

"A  dependent,  in  law,  is  one  who  is  sustained  by  another  or 
relies  for  support  upon  the  aid  of  another ;  who  looks  to  another 
for  support  and  relies  upon  another  for  reasonable  necessaries  con- 
sistent with  the  dependent's  position  in  life.  The  dependency 
which  justifies  an  award  is  personal  dependency  for  support  and 

57.  New  Monckton  Colleries  v.  Reeling,  (1911),  A.  C.  648,  105  L.  T. 
337,  '21  T.  L.  Rep.  551,  80  L.  J.  K.  B  1205,  55  Sol,  J.  687,  4  B.  W.  C.  C. 
332,  6  N.  C.  C.  A.  240;   McDonald  v.  Great  Atlantic  &  Pacific  Tea  Co., 
Conn.—,  (1920).  Ill  All.  65,  6  W.  C.  L.  J.  525;  Atwood  v.  Conn.  Light 
&  Power  Co.,  —  Conn.  — ,  (1921),  112  Atl.  269;  Morris  v.  Yough  Coal  & 
Supply  Co.,  —  Pa.  — ,  (1920),  109  Atl.  914,  6  W.  C.  L.  J.  210;  Hancock  et 
al.  v.  Imfcis.  Comm.,  —  Utah  — ,  (1921),  198  Pac.  169. 

58.  Globe   Grain  and   Milling   Co.   v.   Indus.   Comm., — Utah—,    (1920), 
193  Pac.  642,  7  W.  C.  L.  J.  245;  Johnson  Coffee  Co.  v.  McDonald, — Tenn. 
— ,   (1920),  226  S.  W.  215;"Kelley  v.  Hoefler  Ice  Cream  Co.,— App.  Div. 
— ,  188  N.  Y.  S.  584. 

59.  Crockett  v.  International  Ry.  Co.,  162  N.  Y.  S.  357,  B  1  TV.  C. 
L.    J.    1292. 

60.  New   Monokton  Collieries   Co.   v.   Keeling,    (1911),   A.   C.    648,   80 
L.  J.  K.  B.  1205,  105  L.  T.  337,  4  B.   vV.  C.  C.  332,  6  N.  C.   C.  A.  240; 
Simmons  v.  White,  (1899),  80  L.  T.  344.  1  W.  C.  C.  89,  68  L.  J.   Q.  B. 
507. 

61.  In  re  Hess,  191  N.  Y.  App.  Div.  667,  181  N.  Y.  Supp.  674,  6  W.  C. 
L.    J.   75,    (1920). 

898 


1>I  1'ENDENCY.  §    367 


maintenance  —  an  actual  dt'jM-n.lfiicy  for  support  consistent  with  the 
dependent's  position  in  life.  It  does  not  im-ludf  the  maintenance 
of  others  whom  the  dependent  is  under  no  legal  obligation  to  main- 
tain, or  contributions  which  merely  enable  the  donee  to  accumulate 
money."62 

In  the  absence  of  evidence  to  show  that  deceased's  brother  was 
actually  dependent  upon  him,  an  award  in  favor  of  the  brother 
was  erroneous.  The  giving  of  money  to  the  grandmother  of  de- 
ceased to  assist  in  paying  off  a  mortgage,  and  not  for  support,  does 
not  constitute  her  dependent  upon  him,  for  the  purpose  )f  the 
compensation  law  is  to  provide  support  for  dependents,  and  not  to 
pay  their  debts.68 

"The  test  is,  not  what  conditions  arise  after  the  accident,  but 
what  was  the  condition  at  the  time  of  the  accident.  Here  it  appears 
that  the  grandmother  was  saving  money  to  pay  on  the  mortgage, 
and  to  discharge  other  obligations,  and  that  she  was  enabled  to  do 
this  because  'poor  Joe'  helped  'out  good;'  but  there  is  no  evi- 
dence that  her  own  husband  was  not  in  a  position  to  meet  his  law- 
ful obligations."64 

62.  Rock  Island  Bridge  &  Iron  Works  v.  Indus.  Comm.,  287  111.  648, 
(1919),  122  N.  E.  830,  4  W.   C.   L.   J.   33;   Dazy  v.  Apponaug,  36  R.  I. 
81,  89  Atl.  160,  4  N.  C.  C.  A.  594;   Simmons  v.  White  Bros.,  (1899),  1.  Q. 

B.  1005,  68  L.  J.  Q.  B.  507,  1  W.  C.  C.  89,  80  L.   T.   344;    In  re  Hora, 
Ohio  Ind.  Comm.,   (1914),  6  N.  C.  C.  A.  242;  Jackson  v.  Erie  R.   Co., 
86  N.   J.   L.   550,   91   Atl.   1035;    Tirre  v.   Bus'     Terminal   Co..   172   App. 
Div.  386,  165  N.  Y.  S.  883;   McCarthy  v.  Order  of  Protection,  153  Mass. 
314;  McDonald  v.  Great  Atlantic  &  Pacific  Tea  Co.,  —  Conn.  —  ,  111  Atl. 
65,  6  W.  C.  L.  J.  525;  Alden  Coal  Co.,  v.  Indus.  Comm.—,  111.—,  (1920), 
127  N.  E.  641,  6  W.  C.  L.  J.  274;   Morris  v.  Yough  Coal  &  Supply  Co., 
—Pa.—,  (1920),  109  Atl.  914,  6  W.  C.  L.  J.  210;  Rockford  Cabinet  Co.  v. 
Indus.  Comm.,  —  111.  —  ,  (1920),  129  N.  E.  142,  7  W.  C.  L.  J.  280;  McDonald 
v.  Employer's  Liah..  Assur.  Corp.—  Me.—  ,  (-1921),  112  Atl.  719;  Richardson 
Sand  Co.  v.  Indus.  Comm.,  —  111.  —  ,  (1921),  129  N.  E.  751;  Morgan  v.  Butte 
Cent.  Mining  &  Mill  Co.—  Mont.—  ,  (1920),  194  Pac.  496. 

63.  Mulraney  v.  Brooklyn  Rapid  Transit  Co.,  180  N.  Y.  S.  654,  5  W. 

C.  L.  J.  731;  190  App.  Div.  774;  Wilkes  v.  Rome  Wire  Co.,  184  App.  Div. 
626,  172  N.  Y.  S.  406,  3  W.  C.  L.  J.  174;  Dazy  v.  Apponaug  Co.,  36  R.  I.  81, 
4  N.  C.  C.  A.  594,  89  Atl.  160. 

64.  Mulraney  v.  Brooklyn  Rapid  Transit  Co.,  190  App.  Div.  774,  180 
N.  Y.  S.  654,  5  W.  C.  L.  J.  731;  Newton  v.  Rhode  Island  Co..—  R.  I.  —  , 

899 


§  367  WORKMEN'S  COMPENSATION  LAW 

But  this  does  not  preclude  a  consideration  of  a  minor's  wagt, 
increase1,  as  this  rule  relates  only  to  accertaining  who  are  depen- 
dents. 6B 

Under  the  Illinois  Act,  illegitimate  children  are  not  included 
within  the  protection  of  the  "Workmen's  compensation  act,  Section 
7  providing  for  payment  of  compensation  for  injury  resulting  in 
death,  if  the1  employee  leaves  children  or  other  lineal  heirs,  whom 
he  is  under  legal  obligation  to  support.  The  Supreme1  Court  of 
Illinois  follows  the  common  law  rule  which  is  that  parents  are  un- 
der no  legal  obligation  to  support  an  illegitimate  child.66 

A  minor  employee 's  parents  and  their  family  are  dependent  upon 
him,  if  contributions  from  his  earnings  are  reasonably  necessary 
to  support  the  family ;  otherwise  not. 67 

The  decisions  on  the  question  of  illegitimate  children  are  not  in 
accord.  The  Connecticut  Supreme  Court  holds  that  illegitimate 
children  living  with  and  dependent  upon  deceased  for  their  sup- 
port, are  such  dependents  as  are  entitled  to  compensation.68 

Minor  children  in  the  custody  of  a  divorced  wife,  where  the  de- 
cree of  divorce  made  no  provision  for  the  support  of  the/  children 
by  the  father  and  he1  furnished  the  children  no  support  after  a 
brief  space  of  time,  except  gifts  of  money  and  clothing  when  he 
chose  to  do  so,  were  held  not  to  be  total  dependents  under  the 
Maryland  Workmen's  Compensation  Law,  Sec.  35.69 

(1919),  105  Atl.  363,  3  W.  C.  L.  J.  527;  Birmingham  v.  Westinghouse 
Electric  &  Mfg.  Co.,  167  N.  Y.  S.  520,  180  App.  Div.  48,  1  W.  C.  L. 
J.  241,  16  N.  C.  C.  A.  179;  In  re  Hess,  191  App.  Div.  667,  181  N.  Y. 
S.  674,  (1920),  6  W.  C.  L.  J.  75;  Mac  Donald  v.  Employers'  Liab. 
Assur.  Corp.,  —  Me.  — ,  (1921),  112  Atl.  719. 

65.  Kilberg  v.  Vitch,  171  App.  Div.  89,  156  N.  Y.  Supp.  971. 

66.  Murrell  v.   Indus.  Comm.,  291.   111.  334,   126  N.   E.  189;    5    W.  C. 
L.  J.  673;    Scott  v.  Indep.  Ice    Co.,    135  Md.    343',    (1919),    109  Atl.    117, 
5  W.  C.  L.  J.  702. 

67.  In  re  Stewart,  —  Ind.  App.—,  (1920),  126  N.  E.  42,  5  W.  C.  L.  J. 
514;  Moll  v.  City  Bakery,  199   Mich.  670,165  N.   W.  649,  1  W.    C.    L.  J. 
391,  16  N.  C.  C.  A.  186. 

68.  Piccinim  v.  Conn.  Light  and    Power    Co.,    93    Conn.    423,    (1919), 
106  Atl.  330,  4  W.   C.   L.   J.   18.     Note:    For  question    of  Illegitimate 
Children  see  title,  "What  Children  may  be  Dependents,"  §  374  post. 

69.  State  Industrial  Accident  Commission   v.  Downton,  135  Md.  App. 
412,  109   Atl.     63.     5  W.  C.   L.  J.  709. 

900 


DEPENDENCY.  §    367 

It  has  been  held  that  a  half  brother  of  a  deceased  employee,  who 
was  living  with  his  mother,  but  dependent  upon  and  receiving  sup- 
port from  the  deceased,  was  an  actual  dependent  within  the  mean- 
ing of  the  Massachusetts  Act;  and  the  fact  that  deceased  gave  the 
money  to  his  stepmother  for  the  support  of  his  half  brother  was 
immaterial. T0 

The  Texas  Act  makes  dependent  brothers  of  a  deceased  employ- 
ee "beneficiaries"  within  the1  meaning  of  Section  8a  of  the  Act.'1 

It  has  been  held,  under  the  New  York  Act,  that  where  a  father 
contributed  twelve  dollars  to  a  family  fund  of  thirty  dollars  per 
week,  he  cannot  be  said  to  be  dependent  upon  a  son  who  contrib- 
uted a  like  sum,  the  dependency  upon  the  son  being  among  the 
other  members  of  the  family.78 

"The  deceased  employee  having  left  a  minor  daughter,  the 
claimant,  his  sister,  is  not  the  next  of  kin  and  can  have  no  claim 
for  compensation  unless  she  was  a  member  of  his  family  partly 
dependent  for  support  upon  his  earnings  at  the  time  of  his  death. 
Kelly's  Case,  222  Mass.  538,  111  N.  E.  395;  St.  1911  c.  751,  pt.  5, 
Sec.  2.  While  the  claimant,  her  minor  son  and  the  employee  lived 
together  in  the  house  formerly  owned  by  the  mother  of  the 
sister  and  brother  and  who  died  intestate,  the  claimant  is  shown 
t^have  had  the  exclusive  management  of  the  household  affairs. 
And  she  and  her  son  undoubtedly  constituted  a  family.  Murphy's 
Case,  224  Mass.  592,  113  N.  E.  283.  It  is  uncontroverted  that 
'nothing  was  ever  said  about  board.'  But  even  so,  it  is  plain  on 
the  record  that  the  weekly  payments  of  the  employee  contributed 
for  the  support  of  the  household  whenever  he  could  obtain  employ- 
ment, and  the  purchase  of  some  incidental  household  furnishings 
and  supplies  as  we'll  as  his  cultivation  of  the  garden  did  not  make 
him  head  of  the  family  of  which  his  sister  and  his  nephew  could 

70.  O'Flynn's  Case    (1919),  232  Mass.  582,  122  N.  E.  767,  4  W.  C.  L. 
J.  105;  Walz  v.  Holbrook,  Cabot  &   Rollins  Corp.,  170  App.   Div.   6,   155 
N.  Y.  Supp.  703. 

71.  American  Indemnity  Co.  v.  Zyloni,  —  Tex.  Civ.  App.—,   (1919), 
212  S.  W.  183,  4  W.  C.  L.  J.  315;  Vaughan  v  S.  8.  Ins.  Co.,  —  Tex.  — , 
206  S.  W.  920;    3   W.  C.  L.   J.    386. 

72.  Klein  v.  Brooklyn  Heights  R.  Co.,  188  App.  Div.  509,  177  N.  Y.  8. 
67,  (1919),  4  W.  C.  L.  J.  432. 

901 


§  367  WORKMEN'S  COMPENSATION  LAW 

be  deemed  members.  Cowden's  Case,  225  Mass.  66,  113  N.  E. 
1036.  "7S 

"A  claim  of  dependency  is  not  to  be  defeated  by  mere  proof 
that  the  claimant  can  by  the  exercise  of  his  best  endeavors  sup- 
port himself  and  family  by  his  own  unaided  efforts.  Howells  v. 
Vivian,  85  L.  T.  R.  529,  530 ;  Powers  v.  Hotel  Bond  Co.,  89  Conn. 
143,  152,  93  Atl.  245.  But  as  it  is  no  purpose  of  the  law  to  give 
aid  and  comfort  to  slackers  in  respect  of  their  obligations  as 
members  of  society,  so  it  is  that  a  claim  of  dependency  will  meet 
defeat  if  it  appear  that  the  claimant  by  the  expenditure  of  such 
effort  as,  under  all  circumstances,  ought  fairly  and  reasonably 
to  be  expected  of  him  is  of  ability  to  be  self  and  family  support- 
ing according  to  the  proper  measure  of  such  support."74 

In  discussing  the  question  of  the  beneficiaries  and  the  distribu- 
tion of  compensation  under  the  Texas  Act,  the  Supreme  Court  of 
Texas  said:  "In  fixing  the  compensation  to  be  paid  for  injury 
to  an  employee  of  a  subscribing  employer,  sustained  in  the  course 
of  his  employment  and  resulting  in  death,  the  Workmen's  Com- 
pensation Act  of  1913  (Acts  33d  Leg.  c.  179  (Vernon's  Sayles' 
Ann.  Civ.  St.  1914,  arts.  5246h-5246zzzz)  omitted  any  express 
designation  of  the  beneficiaries  entitled  to  receive  the  compen- 
sation. It  merely  declared  (section  8,  art.  5246kk)  that  it  should 
be  paid  to  'the  legal  beneficiary'  of  the  deceased  employee,  with 
a  proviso  in  the  following  language :  '  Provided,  that  the  compen- 
sation herein  provided  for  shall  be  distributed  according  to  the 
law  providing  for  the  distribution  of  other  property  of  deceas- 
ed.' The  question  here  is,  how  shall  the  beneficiaries  in  such 
cases  be  determined, — by  the  law  of  descent  and  distribution,  or 
the  law  governing  the  recovery  of  damages  for  negligent  or  wrong- 
ful injury  resulting  in  death — the  death  injury  statute,  article 
4698?  The  act  was  amended  in  this  particular  in  1917,  Acts  35th 
Leg.  c.  103,  Section  8a  (Vernon's  Ann.  Civ.  St.  Supp.  1918,  art. 
5246 — 15),  by  expressly  naming,  the  beneficiaries.  This  case 

73.  In  re  Murphy,  230  Mass.  99,  117  N.  E.  794,  1  W.  C.  L.  J.  211. 

74.  Gherardi  v.  Connecticut  Co.,  92  Conn.  454,  103  Atl.  668,  2  W.  C. 
L.  J.  212;   Simmons  v.  White,  80  L.  T.  R.  344,  1  W.  C.  C.  89,  15  T.  L. 
Rep.  263,  68  L.  J.  Q.  B.  507,  47  Wkly.  Rep.  513. 

902 


DEPENDENCY.  §    367 

arises  under  the  original  act.  The  solution  of  the  question  is 
found  in  the  proviso.  It  says  that  the  compensation  shall  be  dis- 
tributed 'according  to  the  law  providing  for  the  distribution  of 
other  property  of  the  deceased.'  Interpretation  can  add  nothing 
to  the  clearness  of  this  language.  It  means  the  law  governing 
the  distribution  of  the  decedent's  property,  not  a  law  authorizing 
the  recovery  of  damages  by  certain  kindred  as  their  property. 
The  only  law  we  have  regulating  the  distribution  of  the  property 
of  an  intestate  decedent  is  that  comprised  by  our  statutes  of 
descent  and  distribution.  That  is  plainly  the  law  referred  to. 
It  is,  in  effect,  made  a  part  of  the  act."75 

Under  the  rule  that  dependency  is  to  be  determined  on  the  facts 
as  they  existed  at  the  time  of  the  accident,  a  father  living  with 
and  dependent  upon  his  son  for  support  at  the  time  of  the  fatal 
accident  to  the  son  is  to  be  deemed  his  dependent  in  preference 
to  a  wife  married  after  the  accident  or  a  posthumous  child  with 
which  the  wife  was  pregnant  from  deceased  prior  to  their  marri- 
age.76 But  New  York  decisions  hold  to  the  contrary.77 

Compensation  goes  to  those  dependent  upon  the  deceased 
workman,  and  not  those  supported  by  him,  who  would  not  other- 
wise come  within  the  statutory  definition  of  dependents.78 

"The  New  York  Act  does  not  limit  the  right  to  an  award  to 
those  dependents  who  had  the  legal  right  to  compel  the  deceased 
to  furnish  them  support,  but  it  applies  as  well  to  cases  where  the 

75.  Vaughan   v.   Southern    Surety   Ins.   Co.,   — ,   Tex.   — ,   20i>   S.   W. 
920,  3  W.  C.  L.  J.  386. 

76.  Kuetbach  v.  Indus.  Comm.,  166  W-is.  378,  165  N.  W.  302,  1  W.  C. 
L.  J.  461,  15  N.  C.  C.  A.  842. 

77.  Crockett   v.   International    R.   Co.,    176    App.    Div.   45,    162   N.    Y. 
Supp.  357,   15  N.  C.  C.   A.    843;    holding  that  the  dependency  of  wife 
and  children  are  not  dependent    upon   the    facts  as    they    existed    at 
time  of  injury  and  a  wife  marrying  an   injured  workman   is  entitled 
to  compensation  for  his  death,  not  on  the  ground  of  her  dependency 
but  on  the    ground    of  her  wifehood. 

78.  In  re  Derinza,  In  re  Pucci,  229  Mass.  435,  118  N.  E.  942,  1  W.  C.  L. 
J.  795,  Id  N.  C.  C.  A.  87. 

903 


§  367  WORKMEN'S  COMPENSATION  LAW 

person  was  dependent  for  support  upon  the  voluntary  contribu- 
tions of  the  deceased."79 

"The  test  of  dependency  is  not  whether  the  petitioner,  by  re- 
ducing his  expenses  below  a  standard  suitable  to  his  condition  in 
life,  could  secure  a  subsistence  for  his  family  without  the  contri- 
butions of  the  deceased  son,  but  whether  such  contributions  were 
needed  to  provide  the  family  with  the  ordinary  necessaries  of 
life  suitable  for  persons  in  their  class  and  position."80 

Lord  Halsbury  in  criticising  the  above  definition  said:  "I  de- 
cline to  assume  that  the  legislature  has  contemplated  a  particular 
'standard',  *  *  *  dependent  upon  *  *  *  the  ordinary 
course  of  expenditure  in  the  neighborhood  and  in  the  class  to 
which  the  man  lived  *  *  *  what  the  family  was  in  fact  earn- 
ing, what  the  family  was  in  fact  spending  for  its  maintenance, 
as  a  family,  seems  to  be  the  only  thing  which  a  judge  could  prop- 
erly regard."81 

This  rule  seems  to  put  a  premium  on  riotous  living.  ""What 
the  family  was  in  fact  earning,  what  the  family  was  in  fact  spend- 
ing," taken  as  a  criterion,  would  give  more  to  the  family  if  they 
were  extravagant  to  the  extent  of  spending  all  income,  whether 
necessary  or  not,  than  it  would  give  if  the  family  lived  economi- 
cally, frugally,  and  husbanded  their  resources.  "What  the 
family  was  in  fact  spending, ' '  may  bring  persons  within  the  role 
of  dependents  who  would  not  be  such  were  it  not  for  their  extrav- 
agance, and  may  keep  others  out  of  that  class  because  of  their 
frugality  and  industry.  It  is  thought  that  the  better  plan  is  to 
adopt  a  standard  fixed  by  the  station  in  life  of  the  persons  claim- 
ing to  be  dependents  at  the  time  of  the  accident.  This  way  af- 
fords a  uniform  guide,  which  will  not  work  hardship  on  anyone, 
which  will  not  be  generous  with  the  extravagant,  nor  miserly 
with  the  frugal. 

79.  Walz   v.   Holbrook,   Cabot   &   Rollins   Corp.,   170   App.    Div.   6,   13 
N.  C.  C.  A.  464,  165  N.  Y.  S.  703. 

80.  Dazy  v.  Apponaug  Co.,  36  R.  I.  81,  4  N.  C.  C.  A.  594,  89  Atl.  160. 

81.  Maine  Colliery  Co.  v.  Davies,  (1900),  A.  C.  358,  80  L.  T.  674,  16  T.  L. 
Rep.  460,  1  W.  C.  C.  92,  6  N.  C.  C.  A.  241;   French  v.  Underwood,  19  T. 
L.  Rep.  416,  5  W.  C.  C.  119,  6  N.  C.  C.  A.  242. 

904 


DEPENDENCY.  §    367 

The  question  of  dependency  is  determined  in  most  jurisdictions 
upon  the  law  as  it  existed  at  the  time  of  the  accident,  but  the 
Minnesota  Supreme  Court  holds  that  this  questions  depends  upon 
the  law  as  it  existed  at  the  time  of  the  death." 

Under  the  New  York  Act,  a  mother  living  with  and  supported 
by  her  husband  is  not  a  dependent  upon  her  minor  daughter,  be- 
cause of  the  fact  that  the  daughter  turned  over  part  of  her  wages 
to  the  mother.88 

To  sustain  an  award  to  parents  for  the  death  of  a  son,  there 
must  be  a  showing  made  of  actual  support  by  the  son  during  the 
year  prior  to  the  accident.84 

Parents  are  dependents  under  the  Illinois  act  if  the  son  con- 
tributed to  their  support  within  four  years,  and  they  need  not 
have  been  actually  dependent  upon  him.89  And  contributions  by 
the  minor  need  not  exceed  the  expenses  of  the  parents  in  behalf 
of  the  minor.86 

Under  the  Illinois  Act  a  wife  is  a  dependent  of  her  deceased 
husband,  if  he  was  under  a  legal  obligation  to  support  her,  even 
though  she  was  not  living  with  him  and  not  dependent  upon 
him." 

82.  State  ex  rel.  Carlson  v.  Dist.  Court,  131  Minn.  96,  154  N.  W.  661; 
State  ex  rel.  Globe  Indemnity  Co.  v.  District  Court,  132  Minn.  249,  156 
N.  W.  120;   Hansen  v.  Flinn  O'Rourke  Co.,  Inc.,  183  N.  Y.  S.  213,  6  W. 
C.  L.  J.  476. 

83.  Prey  v.  McLaughlin  Bros.  Co.,  187  App.  Div.  824.  175  N.  Y.  Supp. 
873,  (1919),  4  W.  C.  L.  J.  133;  Birmingham  v.  Westinghoucr  Electric  A 
Mfg.  Co.,  180  App.  Div.  48,  167  N.  Y.  Supp.  520,  1  W.  C.  L.  J.  241,  16  N. 
C.    C.    A.    179. 

84.  Prof  eta  v.  Retsof  Mining  Co.,  188  App.  Div.  383,  177  N.  Y.  Supp. 
60,   (1919),  4  W.  C.L.  J.  444. 

85.  Humphrey  v.  Indus.  Comm.,  285  111.  372,  120  N.  E   816,  3  W.  C.  L. 
J.   102. 

86.  Metal   Stamping  Corp.  v.  Indus.  Comm.,  285  III.   528.  121   N.  E. 
258,  3.  W.  C.  L.  J.  258;  In  re  Peters,  64  Ind.  App.  --    116  N.  E.  848,  16 
N.  C.  C.  A.  183. 

87.  Smith-Lohr  Coal  Mining  Co.  v.  Indup.  Comm.,  286  111.  34.  121  N.  E. 
231,  3  W.  C.  L.  J.  250;    American  Milling  Co.  v.  Indus.  Bd.,  279  111.  660. 
117  N.  E.  147,  16  N.  C.  C.  A.  86;    Ooelitz  Co.  v.  Indus.  Bd.,  278  111.  164. 
115  N.  E.  855.  16  N.  C.  C.  A.  80. 

905 


§  367  WORKMEN'S  COMPENSATION  LAW 

The  word  "widow,"  as  used  in  the  Washington  Act,  is  to  be 
given  its  ordinary  meaning,  which  is,  a  legally  married  woman 
whose  husband  is  dead.  Therefore  an  honest  but  erroneous  be- 
lief that  the  claimant  was  married  to  deceased  will  not  entitle 
her  to  compensation  as  his  dependent.88  But  the  Supreme  Court 
of  California  arrived  at  an  opposite  conclusion  in  construing  the 
act  of  that  state.89 

In  discussing  the  question  of  dependency  the  Supreme  Court 
of  Delaware  said:  "Persons  in  the  enumerated  classes  may  be 
wholly  or  partially  dependent  on  the  employee  and  come  within 
contemplation  of  the  provisions  of  this  section  if  the  dependency 
existed  at  the  time  of  the  injury.  The  question  arises  what  may 
be  considered  dependency?  The  term  has  frequently  been  de- 
fined by  the  courts  of  this  country  and  of  England  and  we  think 
it  not  possible  to  state  a  complete  and  exhaustive  definition  of 
the  word  as  used  in  Workmen's  Compensation  Laws;  but  the 
definition  stated  by  the  court  in  the  case  In  re  Hora,  vol.  1,  No. 
7,  Bui.  Ohio  Industrial  Commission,  173,  is  as  satisfactory  as  any 
we  have  seen.  The  court  in  that  case  defined  dependency  to  be 
'dependent  for  the  ordinary  necessities  of  life  for  a  person  of  that 
class  and  position  in  life,  taking  into  account  the  financial  and 
social  position  of  the  recipient.'  It  is  not  sufficient  that  the  con- 
tributions of  the  employee  were  used  in  paying  the  living  ex- 
penses of  the  claimant,  but  it  must  be  shown  that  the  contribu- 
tions of  the  employee  were  relied  upon  by  the  dependent  for  his 
or  her  means  of  living  judging  this  by .  the  class  and  position  of 
life  of  the  dependent.  Powers  v.  Hotel  Bond  Co.,  89  Conn.  143,  93 
Atl.  245.  The  fact  that  a  man  is  by  his  best  efforts  able  to  pro- 
vide his  family  with  the  bare  necessities  of  life  would  not  pre- 
vent him  from  being  a  dependent  under  our  statute  for  the  words 
of  the  statute  convey  a  much  broader  meaning  than  this.  On  the 
other  hand,  the  mere  fact  that  contributions  had  been  made  by 

88.  Meton  v.  State  Ind.  Ins.  Dept,  104  Wash.  652,  177  Pac.  696,  3  W. 
C.  L.  J.  541. 

89.  Tennescal  Rock  Co.  v.  Ind.  Ace.  Comm.,  —  Cal.  — ,  (1919),  182  Pac. 
447,  4  W.  C.  L.  J.  469. 

906 


DEPENDENCY.  §   367 

the  deceased  workman  to  a  claimant  who  had  the  health  aud 
ability  to  support  himself  and  family  by  his  own  reasonable  ef- 
forts but  did  not  do  so,  would  not  constitute  the  claimant  a  de- 
pendent, for  it  was  not  the  intent  of  the  Legislature  to  maintain 
in  idleness  at  the  expense  of  the  employer  those  who  are  able  and 
have  the  capacity  to  provide  for  themselves  and  have  no  appeal- 
ing reason  for  not  doing  so.  The  condition  of  health,  need  for 
medicine  and  medical  attention  are  subjects  proper  for  considera- 
tion in  determining  the  question  of  dependency."90 

A  statute  which  specifies  who  shall  be  conclusively  presumed 
to  be  dependent  but  makes  no  provision  for  sisters  or  nieces, 
their  dependency  must  be  determined  in  accordance  with  the 
facts  at  the  time  of  the  injury.  Therefore  a  sister  who  was  sup- 
ported by  her  brother  under  an  agreement  that  she  keep  house 
for  him,  although  she  was  a  competent  stenographer,  but  was 
precluded  from  that  position  by  the  condition  of  her  health,  was 
totally  dependent  upon  him,  and  cannot  be  deprived  of  compen- 
sation on  the  ground  that  she  could  support  herself  when  she 
was,  as  a  matter  of  fact,  supported  by  him.91 

Actual  contributions  to  married  daughters  were,  under  the 
Illinois  act  of  1913,  sufficient  to  entitle  them  to  compensation  on 
the  death  of  the  father,  even  though  they  were  not  dependent  up- 
on him  for  support.  This  provision  has  been  changed  so  as  to 
make  dependency  a  condition  of  compensation.  Laws  of  1917, 
p.  490.9t  Also,  support  of  an  incapacitated  daughter,  22  years 
of  age,  within  four  years  prior  to  an  accident,  entitles  the  daughter 
to  compensation.  The  provision  in  regard  to  the  four  years  was 
eliminated  by  amendment  in  1919.93 

80.  Benjamin  P.  Shaw  Co.  v.  Palmatory,  —  Del  — .  (1919),  105  Atl.  417, 
3  W.  C  L.  J.  424;  Powers  v.  Hotel  Bond  Co.,  83  Conn..  143,  93  Atl.  245; 
Johansen  v.  Linde  &  Griffith  Co.,  39  N.  J.  L.  J.  143,  13  N.  C.  C.  A.  318. 

91.  In  re  Lanman,  64  Ind.  App.  — ,  117  N.  E.  671,  1  W.  C.  L.  J.  185. 

92.  Peabody  Coal  Co.  v.  Indus.  Comm.  281   111.  579,  117  N.  E.  983,  1 
W.  C.  L.  J.  524,  16  N.  C.  C.  A.  143. 

93.  Mechanics  Furniture  Co.  v.  Indus    Bd.   of  111.    281  111.  530,   117    N. 
E.  986,  I  W.  C.  L.  J.  529,  15  N.  C.  C.  A.  292. 

907 


§  367  WORKMEN'S  COMPENSATION  LAW 

It  has  been  held  by  the  Supreme  Court  of  Connecticut  that  a 
married  daughter  whose  father  had  made  contributions  to  her, 
but  had  not  done  so  for  6  months  prior  to  the  date  of  injury,  can- 
not be  said  to  be  dependent  on  her  father  when  she  was  amply 
provided  for  otherwise.94 

Under  the  Elnglish  Act  a  grown  daughter,  capable  of  earning 
her  own  living,  may  be  a  dependent,  if  she  was  actually  depend- 
ing upon  and  receiving  support  from  her  father,  for  whom  she 
was  keeping  house.95 

Under  the  New  York  Act,  limiting  dependents  to  the  widow 
and  next  of  kin,  it  has  been  held  that  a  mother  and  half  brother 
and  sisters  of  deceased,  who  were  partially  dependent  upon  de- 
ceased, were  entitled  to  compensation.96 

A  niece  who  stayed  with  an  uncle  and  was  furnished  board  and 
clothing  while  she  was  going  to  school,  was  held  not  to  be  a  de- 
pendent, within  the  meaning  of  the  Indiana  Act.97 

Under  the  Nebraska  Act,  "dependency  is  not  based  solely  up- 
on a  present  legal  obligation  to  support,"  and  the  question  is  not 
determined  by  the  fact  that  a  decedent  had  or  had  not  contrib- 
uted to  the  support,  of  a  parent,  before  the  date  of  the  accident. 
The  fact  that  the  mother  had  $300  or  $400  in  the  bank  drawing 
interest,  and  her  son  was  not  living  with  or  supporting  her  at  the 
time  of  his  death,  does  not  bar  her  right  to  compensation.  If  the 
mother  needs  the  support  of  her  son,  is  legally  entitled  to  it,  and 
there  is  probability  that  she  will  receive  it,  she  is  a  dependent.98 

Under  the  Kansas  Act,  the  court  will  not  inquire  into  the  do- 
mestic arrangements  of  a  family  or  the  necessity  of  reliance  upon 
the  decedent's  contributions,  but  if  the  family  is  actually  dependent 

94.  Blanton  v.  Wheeler  &  Howes  Co.,  91  Conn.   226,  99  Atl.   494,  16 
N.  C.   C.  A.   145. 

95.  Simms  v.  Lilleshall  Colliery  Co.  Ltd.,  1917  W.  C.  &  Ins.  Rep.  218, 
16  N.  C.  C.  A.  147. 

96.  Bylow  v.  St.  Regis  Paper  Co.,  179  App.  Div.  556,  166  N.  Y.  Supp.  874, 
16  N.  C.  C.  A.  152;   Mulhall  v.  Fallen,  176  Mass.  266,  57  N.  E.  386,  54  L. 
R.  A.  934,  79  Am.  St.  Rep.  309. 

97.  In  re  Lanman,  64  Ind.  App.—,  117  N.  E.  671,  16  N.  C.  C.  A.  156. 

98.  Parson  v.  Murphy,  101  Neb.  542,  163  N.  W.  847,  16  N.  C.  C.  A.  174. 
908 


DEPENDENCY.  |    36? 

upon  the  assistance  of  decedent  it  is  sufficient  to  entitle  them  to 
the  benefits  provided.*9 

Dependency  does  not  depend  upon  the  fact  that  contributions 
take  forms  other  than  that  of  money,  or  that  the  contributions  are 
used  for  purchasing  of  articles  of  furniture  and  the  like,  instead 
of  other  purposes.1 

Under  the  Michigan  Act,  making  dependency  a  question  of  fact, 
as  under  the  Minnesota  and  British  Acts  which  seek  to  compensate 
the  dependents  for  the  loss  suffered,  it  was  held,  that  where  the 
expenses  incurred  on  behalf  of  the  son  were  equal  to  or  in  excess 
of  his  contributions,  a  case  of  dependency  was  not  established.* 

A  person  need  not  be  reduced  to  absolute  want  or  be  declared 
a  pauper  in  order  to  come  within  the  provisions  of  the  compensa- 
tion act.  So  the  fact  that  a  mother  had  some  small  means  and 
other  sources  of  revenue  at  the  time  of  her  son's  death  did  not 
preclude  her  from  being  partially  dependent.8 

An  unmarried  sister  may  be  a  dependent  of  deceased,  if  she 
was  actually  supported  by  him  under  conditions  necessitating  his 
support.  As  where  an  unmarried  sister  who  became  pregnant 
appealed  to  her  brother  for  assistance,  and  he  contributed  to  her 
support  during  pregnancy  and  after  the  birth  of  the  child  until 
the  time  of  his  death,  it  was  held,  in  view  of  the  fact  that  she  • 
would  need  his  assistance  longer,  and  that  she  was  capable  of 
working,  that  she  was  entitled  to  compensation  as  one  partially 
dependent.4 

"Where  a  deceased  employee  had  been  living  with  his  half  brother 
and  turned  his  wages  into  the  family  fund,  from  which  he,  his 
half  brother  and  the  latter 's  wife  and  children  were  supported,  the 

99.  Fennimore  v.  Pittsburg  Scammon  Coal  Co.,  100  Kan.  372,  164  Pac. 
265,  16  N.  C.  C.  A.  176. 

1.  In  re  McMahon,  229  Mass.  48,  118  N.  E.  189,  *6  N.  C.  C.  A.  184. 

2.  Moll  v.  City  Bakery,  199  Mich.  670,  165  N.   W.  649,  16  N.  C.  C.  A. 
186,  1  W.  C.  L.  J.  391, 

3.  Rhyner  v.  Hueber  Bldg.  Co.,  171  App.  Div.  56,  156  N.  Y.  8.  903,  13  N. 
C.  C.  A.  317;    Walz  v.  Holbrook,  Cabot  and  Rollins  Corp,  170  N.  Y.  App. 
Dlv.  6,  155  N.  Y.  S.  703. 

4.  Jackson  v.  Indus.  Comm.  of  WiB.,  164  Wis.  94,   159  N.  W.  561,  13 
N.  C.  C.  A.  458. 

909 


9 

§  367  WORKMEN'S  COMPENSATION  LAW 

court  held  that  the  employee  was  a  member  of  the  family  of  the 
claimant  or  half  brother  who  was  partially  dependent  upon  his 
wages  for  support,  but  as  the  employee's  father  survived  and  the 
statute  provides  that  dependents  shall  mean  members  of  the  em- 
ployee's family  or  next  of  kin  who  were  totally  or  partially  de- 
pendent upon  the  employee  at  the  time  of  the  injury,  the  question 
arose  whether  claimant  came  within  this  definition.  On  this  point 
the  court,  after  citing  Daly  v.  New  Jersey  Steel  &  Iron  Co.,  155 
Mass.  1,  5,  15  Am.  Neg.  Gas.  586n  (1891)  ;  Welch  v.  New  York, 
N.  H.  &  H.  R.  R.,  176  Mass.  393,  (1900) ;  and  In  re  Herrick's 
Case,  217  Mass.  Ill,  4  N.  C.  C.  A.  554  (1914),  continued:  "It 
is  plain  from  not  only  these  decisions  but  the  wording  of  the 
statute  that,  while  dependency  determines  the  right  to  compensa- 
tion, it  is  also  necessary  that  the  dependent  should  be  in  the  same 
degree  of  kinship  as  the  statutory  heir  or  heirs.  It  is  true  that 
the  object  of  the  statute  is  to  provide  in  place  of  the  wages  of  the 
deceased  employee  the  means  of  sustenance  for  his  widow  and  other 
dependents.  In  re  Cripp's  Case,  216  Mass.  586,  589  (4.  N.  C.  C. 
A.  546n)  (1914).  And  if  dependents  are  to  be  ascertained  solely 
from  tbose  nearest  in  blood,  it  may  happen  that  where  a  father 
and  mother  survive  who  are  not  dependent  a  sister  wholly  depen- 
dent must  be  denied  relief.  Or,  if  the  employee  leaves  no  widow 
but  only  children  who  are  amply  provided  for  by  marriage  or 
otherwise  are  self-supporting,  and  an  indigent  mother  wholly  de- 
pendent upon  him,  the  mother  is  not  within  the  statute.  But  the 
words  'next  of  kin'  as  used  in  our  laws  uniformly  refer  to  those 
who  are  nearest  in  degree  by  consanguinity.  Swasey  v.  Jaques, 
114  Mass.  135  (1887).  It  must  be  assumed  that  this  term  as  used 
in  the  statute  was  intended  by  the  legislature  to  have  this  well- 
recognized  meaning,  and  we  cannot  construe  'next  of  kin'  as 
being  the  equivalent  of  dependent  next  of  kindred  which  would 
embrace  all  dependents  without  regard  to  the  degree.  *  *  * 
The  claimant  cites  Caliendo's  Case,  219  Mass.  498  (1914),  where 
the  mother  and  sister  of  the  employee  shared  equally  in  the  award, 
but  the  question  whether  they  were  in  the  same  degree  of  kinship 
was  not  raised  or  considered."  The  decree  affirming  the  award 
of  compensation  was  reversed  and  the  claim  disallowed.6 

6.    In  re  Kelley's  Case,  222  Mass.  538,  111  N.  E.  395,  13  N.  C.  C.  A.  459. 
910 


DEPENDENCY.  §   367 

The  Michigan  Court  in  defining  dependency  stated  that:  "The 
Massachusetts  act  (chapter  751.  St.  1911)  contains  the  same  lan- 
guage as  to  dependency  as  does  our  act ;  it  also  contains  a  provision 
similar  to  the  provision  found  in  our  act  in  section  5443.  (.'.  L. 
1915.  In  Derinza's  Case,  229  Mass.  435, 118  N.  E.  942,  the  Supreme 
Judicial  Court  of  that  state  had  under  consideration  the  question 
of  dependency  of  a  wife  living  apart  from  her  husband,  and  it 
was  there  said: 

"The  terms  of  our  act  award  compensation  to  those  dependent 
upon  the  'earnings'  of  the  deceased  employee,  and  not  to  those 
supported  by  him,  differing  thus  from  the  statutes  of  some  other 
jurisdictions.  See  for  example,  Crookston  Lumber  Co.  v.  District 
Court,  131  Minn.  27.  Therefore  in  the  case  at  bar  the  finding- 
can  be  supported  only  if  the  wife  could  be  found  to  have  been 
totally  dependent  upon  the  earnings  of  her  deceased  husband,  and 
not  upon  investments  of  his  property.  This  is  so,  giving  to  'earn- 
ings' the  broadest  meaning  of  which  it  reasonably  is  susceptible. 
Jenks  v.  Dyer,  102  Mass.  235.  Chester  v.  McDonald,  1S5  Mass. 
54.  The  terms  of  part  2,  sections  7  and  12,  the  latter  to  the  effect 
that  'no  savings  or  insurance  of  the  injured  employee  »  *  • 
shall  be  taken  into  consideration  in  determining  the  compensation 
to  be  paid'  under  the  act,  do  not  modify  and, are  not  in  any  re- 
spect in  conflict  with  the  explict  and  unequivocal  provisions  of 
part  2,  section  6,  and  part  5,  section  2,  to  the  effect  that  depend 
ency  in  case  of  death  of  an  employee  shall  be  ascertained  solely  with 
reference  to  the  fact  whether  the  claimants  were  wholly  or  partly 
dependent  upon  the  earnings  of  the  employee  for  support  at  the 
time  of  the  injury. 

"The  language  of  our  act  expressly  states  'dependent  upon 
his  earnings  for  support.'  That  the  earnings  of  an  employee  are 
distinct  and  different  from  rent  he  receives  for  a  building  is  patent. 
The  Legislature  of  this  state  saw  fit  to  use  the  precise  language  of 
the  Massachusetts  act  and  to  purposely  use  the  word  'earnings.' 
We  may  not  eliminate  it  from  our  consideration,  nor  modify  it  by 
some  other  inapplicable  portion  of  the  act.  The  section  under 
consideration  deals  exclusively  with  the  question  of  dependency 
and  is  quite  complete  in  itself."* 

6.    Bolozina  v.  Castile  Mining  Co.,  —  Mich.  — ,  (1920),  178  N  W.  57,  6 

911 


§  368  WORKMEN'S  COMPENSATION  LAW 

The  right  of  dependents  of  a  deceased  employee  to  receive  com- 
pensation, is  not  affected  by  the  fact  that  the  death  of  the  employee 
was  caused  by  the  actionable  negligence  of  a  third  person,  not 
connected  with  the  employment.7 

§  368.  Presumptions  Relating  to  Dependency. — Under  the 
English  Act  matters  of  dependency  are  questions  of  fact,  while 
under  the  majority  of  the  American  Acts  certain  classes  of  per- 
sons are  conclusively  presumed  to  be  dependent.  Thus,  a  wife*  is 
conclusively  presumed  to  be  dependent  upon  a  husband  with 
whom  she  was  living  at  the  time  of  the  accident.  The  same  pre- 
sumption applies  to  children  under  the  statutory  age  limit,  who 
were  living  with  the1  deceased.  Children,  above  the  age  limit  who 
are  mentally  or  physically  incapacitated  from  earning  a  living 
are  generally  presumed  to  be  dependent  upon  a  deceased  parent 
with  whom  they  were  living  at  the  time  of  the  accident.  A  like 
presumption  has  been  accorded  to  husbands  who  were  living  with 
their  wives  at  the  time  of  the  fatal  accident,  although  not  so 
universally  as  the  presumption  in  favor  of  wives. 

As  to  the  presumption  of  the  existence  of  dependents  who  are 
not  claiming  compensation,  it  was  held  in  Illinois  that  where  ?hs 
alien  parents  of  a  deceased  employee,  respectively  60  and  40 
years  old,  were  seen  at  their  residence  in  Russian  Poland  in  Au- 
gust, 1915,  the  presumption  of  continuance  of  life  is  insufficient 
to  establish  the  existence  of  beneficiaries  26  months  later;  that 
country  having  in  the  meantime  been  overrun  by  hostile  armies 
and  devastated  and  robbed  of  the  means  of  sustenance,  the1  fact 
of  the  existence  of  the  beneficiary  at  the  time  of  the  hearing  must 
be  affirmatively  shown  by  the  applicant.8 

The  fact  that  the  statute  provides  that  a  husband  or  wife  shall 
be  conclusively  presumed  to  be  dependent  each  upon  the  other,  does 

W.  C.  L.  J.  327;    Finn  v.  Detroit  Ry.,  190  Mich.  112',  155  N.  W.  721,  L. 
R.  A.  1916C,  1142. 

7.  Ferraro  v.  La  Belle  Iron  Works,  Ohio  Ind.  Comm.  Dec.  9  N.  C.  C.  A. 
596. 

8.  National  Zinc  Co.  v.  Indus.  Comm.,  292  111.  598,  127  N.  E.  135,  6  W. 
C.  L.  J.  21. 

912 


DEPENDENCY.  §   368 

• 

not  prevent  either  of  them  from  being  dependent  upon  another 
as  matter  of  fact,  and  recovering  compensation  by  reason  of  such 
dependency." 

Where  a  minor  son,  at  the  time  of  an  agreement  for  compen- 
sation, was  conclusively  presumed  to  be  dependent  in  accordance 
with  the  statutory  provision,  later  became  self  supporting,  the 
court  said:  "Such  dependency  was  created  by  the  statute  as  of 
the  time  of  the  injury,  and  the  amount  payable,  within  defined 
limits,  was  controlled  by  the  statute,  St.  1911,  c.  751,  part  2,  Sec. 
6,  7,  as  amended  by  St.  1914,  c.  708,  Sec.  2,  3.  Where  dependency, 
as  in  this  case,  is  not  to  be  determined  as  a  question  of  fact,  but  ex- 
ists by  virtue  of  the  statute,  it  is  not  affected  by  the  wealth  or 
poverty  of  the  dependent.  Bott's  Case,  230  Mass.  152,  119  N.  E 
755;  Gavaghan's  Case,  232  Mass.  212,  122  N.  E.  298.  In  Bott's 
Case,  it  was  held  that  the  remarriage  of  the  dependent  widow  to 
one  from  whom  she  received  ample  support  did  not  terminate  hei 
right  to  compensation.  This  is  decisive.  There  is  no  distinction 
between  a  widow  conclusively  deemed  to  be  dependent,  and  a  son 
as  to  whom  the  same  conclusive  statutory  presumption  exists.  "J0 

Where  a  husband  and  wife  are  living  apart,  after  an  interlocu- 
tory decree  of  divorce  in  favor  of  the  wife,  with  no  provision  for 
support,  the  wife  is  not  entitled  to  the  presumption  of  total  de- 
pendency created  by  the  California  Workman's  Compensation 
Act,  Sec.  14,  Subd.  a  (I).11  But  a  wife  living  apart  from  her  hus- 
band, under  a  decree  awarding  her  separate  maintenance,  is  with- 
in the  section  of  the  statute,  conclusively  presuming  a  wife  living 
with  her  husband,  or  for  whose  support  the  husband  is  legally 
liable,  to  be  dependent  upon  such  husband  for  support.12 

9.  Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,   96  Atl.  1025;    Me- 
donald  v.  Great  Atlantic  and  Pacific  Tea  Co.,  —  Conn.  — ,  (1920),  111  AIL 
65,  6  W.  C.  L.  J.  525. 

10.  Cronin's  Case,  5>33  Maes.  243,  (1919),  124  N.  E.  669,  5  W.  C.  L.  J 
80.     See  Ohio  Act  1921  Am.  §  1465-82. 

11.  London  Guarantee  &  Accident  Co.  Ltd.  v.  Indus.  Ace.  Comm.,  - 
Cal.—,  (1919),  184  Pac.  864. 

12.  Continental  Casualty  Co.  v.  Pillabury,  —  Cal.  — ,  (1919).  184  Pac. 
65C,  5  W.  C.  L.  J.  6. 

913 
W.  C.—S8 


§  368  WORKMEN'S  COMPENSATION  LAW 

Under  the  California  Act  a  minor  daughter  under  the  age  of 
18  deserted  by  her  father  and  living  apart  from  him  for  a  jus- 
tifiable  cause,  is  not  conclusively  presumed  to  be  wholly  dependent 
upon  him  for  support,  within  the  meaning  of  the  statute.  The 
court  said:  "The  dependent  is  not  aided  by  St.  1919,  c.  204, 
passed  since  the  death  of  her  father.  As  a  result  of  this  amend- 
ment, total  dependency  as  a  minor  under  the  age  of  18  and  above 
the  age  of  15,  exists  only  where  the  minor  is  living  with  the  par- 
ent at  the  time  of  the  parent's  death;  while  as  to  minors  under 
the  age  of  16,  there  is  such  dependency  not  only  where  the  minor 
is  so  living,  but  also  where  the  parent  was  at  the  time  of  his  death 
legally  bound  to  support  the1  minor  although  living  apart  from 
him.  It  follows  that  the  dependency  created  by  the  statute  was 
not  total,  but  rightly  was  determined  as  a  question  of  fact  and 
the  decree  of  the  superior  court  must  be  affirmed."13 

It  is  held  under  the  New  York  Act  that  there  is  no  presumption 
that  the  alien  non  resident  parents  of  an  employee  32  years  of  age 
are  dependent  upon  him.  The1  fact  of  dependency  must  be 
proved.14 

Under  the  Minnesota  Act,  children  under  16  years  or  age;  are 
conclusively  presumed  to  be  dependents,  while  those  between  six- 
ten  and  eighteen  are  prima  facie  presumed  to  be  dependent. 

Where  the  deceased  was  the  mother  of  several  children  unler 
16  years  of  age,  and  the  father  had  for  several  years  prior  to  her 
death  deserted  the  family,  such  children  are  to  be  regarded  as  or- 
phans coming  within  subdivision  10,  sec.  5c,  209,  Laws  1915  (Gen. 
Stat.  Supp.  1917,  Sec.  8208)  for  the  purpose  of  fixing  the  amount 
to  be  paid  under  the  compensation  Act.15  . 

A  daughter,  by  a  former  wife  of  deceased,  over  18  years  of  age1, 
married  and  living  with  her  blind  husband,  she  being  totally  blind, 
and  therefore  physically  incapacitated  from  earning,  claimed  her 
share  in  the  death  benefits.  The  court  citing  the  following  statute : 

13.  Moran's  Case,  —  Mass.  — .  (19«;,  125  N.  E.  157,  5     W.  C.  L.  J.  249. 

14.  Pifumer  v.  Rheinstein  &  Haas,  Inc.,  187  App.  Div.  821,  175  N.  Y. 
Supp.  848,  5  W.   C.  L.  J.  136. 

15.  State  ex  rel.  Radisson-  Hotel  v.  District  Court  of  Hennepin  County, 
143  Minn.  144,  172  N.  W.  897,  4  W.  C.  L.  J.  418. 

914 


DEPENDENCY.  §   368 

«<  *  •  *  Provided,  that  in  the  event  of  the  death  of  an  em- 
ployee who  has  at  the  time  of  his  death  a  living  child  or  children 
by  a  former  wife  or  husband,  under  the  age  of  eighteen  years  (or 
over  said  age,  but  physically  or  mentally  incapacitated  from  earn- 
ing), said  chijd,  or  children  shall  be  conclusively  presumed  to  be 
wholly  dependent  for  support  upon  such  deceased  employee,  and 
the  death  benefit  shall  be  divided  between  the  surviving  wife  or 
husband  and  all  the  children  of  the  deceased  employee  in  equal 
shares,  the  surviving  wife  or  husband  taking  the  same  share  as 
a  child"  then  continued:  "In  the  case  of  a  child  of  a  former  wife 
or  husband  the  Legislature  considers  neither  the  wealth,  poverty, 
reidence  nor  legal  rights  to  support  of  that  child,  and  concerns 
itself  only  with  the  question:  Is  the  child  under  eighteen  years 
of  age,  and  if  over,  is  he  or  she  'physically  or  mentally  incapaci- 
tated from  earning.  If  under  eighteen  years  of  age  or  physically 
or  mentally  incapacitated  from  earning,  the  child  is  conclusively 
presumed  by  the  terms  of  the  act  to  be  wholly  dependent  for  sup- 
port on  the  deceased  employee.  Upon  the  agreed  facts  the  child 
is  physically  incapacitated  from  earning ;  it  follows  that  the  daugh- 
ter Anna  F.  Mason  is  entitled  to  an  equal  share  in  the  death  bene- 
fit with  the  surviving  widow.  St.  1911,  c.  751,  part  2,  Sec.  7 
(c),  as  amended  by  St.  1914,  c.  708,  Sec.  3  (c)."  ie 

It  is  held  under  the  Massachusetts  Act,  that  an  alien's  widow, 
residing  in  a  foreign  country,  is  not  entitled  to  the  benefit  of  the 
conclusive  presumption  of  dependency;  the  question  being  one  of 
fact." 

In  a  Wisconsin  case  the  court  said:  "Having  properly  held 
that  she  was  living  with  her  husband  at  the  time  of  his  death, 
then  section  2394-10,  subd.  3  (a),  establishes  a  conclusive  pre- 
sumption that  she  was  solely  and  wholly  dependent  upon  him 
for  support.  That  she  had  property  of  her  own,  even  were  the 

16.  Gavaghan's  Case,  232  Mass.  212,  (1919),  122  N.  E.  298.  3  W.  C.  L. 
J.  643;    Botts  Case,  230  Mass.  152,  119  N.  E.  765;    Holmberg's  Case,  231 
Mass.  14,  120  N.  E.  353;    Coakley  v.  Co^kley,  216  Mass.  71,  102  N.  E.  S>30. 
Ann.  Cas.  1915A,  867,  4  N.  C.  C.  A.  608. 

17.  Perotti's  Case,  233,  Mass,  297,  (1919),  123  N.  E.  776,  4  W.  C.  L.  J. 
391;  Kalcic  v.  Newport  Mining  Co.,  —  Mich.  — ,  163  N.  W.  962,  A.  1  W. C. 
C.   L.  J.  948. 

915 


§  368  WORKMEN'S  COMPENSATION  LAW 

income  therefrom  sufficient  to,  and  for  a  time  actually  had  been 
alone  used  for  her  support,  would  be  entirely  immaterial."  18 

The  Michigan  Act 'provides  that  a  wife  and  husband  living  to- 
gether and  children  under  16,  or  olde/r  if  incapacitated,  are  con- 
clusively presumed  to  be  totally  dependent.  This  is  true 
even  though  the  wife  from  time  to  time  lives  apart  from  the  hus- 
band in  order  to  work  and  support  herself.  These  facts  are  im- 
material if  they  are  living  together  at  the  time  of  the  fatal  acci- 
dent.10 

Illegitimate  children  of  a  decedent  are  not  conclusively  pre- 
sumed to  be  dependent  on  him,  within  Maine  Rev.  Stat.  c.  50, 
Sec.  1,  Subd.  8  (c)  under  the  rule,  "Expressio  unius  est  exclusio 
alterius."20 

Under  the  Indiana  Act,  a  child  13  years  of  age  not  living  with 
her  father  and  to  whose  support  he  had  not  contributed  for  several 
years,  though  ordered  to  do  so  under  a  divorce  decree,  is  not  con- 
clusively presumed  to  be  dependent  upon  him  for  support,  and 
since  the  child  was  living  with  an  aunt,  and  the  deceased  with 
his  second  wife,  who  was  not  the  mother  of  the  child,  no  com- 
pensation was  allowed  the  latter.21 

Where  a  husband  and  wife  are  living  apart  and  the  husband 
sends  money  for  her  support  and  maintenance1  of  the  home,  there 
is  a  sufficient  compliance  with  the  provision  of  the  statute  providing 
that  the  wife  shall  be  conclusively  presumed  to  be  totally  dependent 
upon  her  husband,  with  whom  she  lives  at  the  time  of  his  death.22 

Where  a  woman's  husband  is  living  and  capable  of*  supporting 

18.  Bell  City  Malleable  Iron  Co.  v.  Indus.  Comm.  of  Wis.,  170   Wis. 
•  293,  (1919),  174  N.  W.  899,  5  W.  C.  L.  J.  333;    Holmberg's  Case,  231  Mass. 

144,  120  N.  E.  353,  2  W.  C.  L.J.  899. 

19.  Doherty  v.  Grosse  Isle  Twp.  205  Mich.  592,  172  N.  W.  596,  4  W. 
C.  L.  J.  222;    East  St.  Louis  Bd.  of  Education  v.  Indus.  Comm., — 111.,— 
(1921),  131  N.  E.  123. 

20.  Scott's  Case,  117  Me.  436,  104  Atl.  794,  3  W.  C.  L.  J.  49 . 

21.  Schwartz  v.  Gerding  &  Aumann  Bros., — Ind.  App. — ,  121  N.  E.  89, 
3  W.  C.  L.  J.  282;    In  re  Bentley,  217  Mass.  79,  104  N.  E.  432,  4  N.  C.  C. 
C.  A.  559. 

22.  Muncie  Foundry  &  Machine  Co.  v.  Coffee,  64  Ind.  App.—,  117  N. 
E.  524,  1  W.  C.  L.  J.  78,  16  N.  C.  C.  A.  82. 

916 


DEPENDENCY.  §   368 

her,  there  is  no  presumption  that  she  is  dependent  upon  her  married 
son,  even  though  he  makes  contributions  to  her." 

Where  deceased's  wife  is  an  alien,  living  apart  from  him  and 
in  a  foreign  country,  she  is  not  entitled  to  the  benefit  of  a  pre- 
sumption that  a  wife  living  apart  from  her  husband  by  agreement, 
to  allow  the  husband  to  earn  wages  for  support,  is  considered 
living  with  the  husband,  for  the  purpose  of  obtaining  the  benefit 
of  the  presumption,  her  dependency  being  a  question  of  fact.2* 

The  Supreme  Court  of  Minnesota,  discussing  in  a  recent  case 
the  question  of  conclusive  presumption  of  dependency,  said:  "The 
Legislature  in  declaring  that  a  particular  fact  shall  be  conclusively 
presumed  does  not  establish  a  presumption  in  the  ordinary  sense  of 
the  term,  but  rather  a  rule  of  law  to  the  effect  that  in  the  case 
specified  the  non-existence  of  the  fact  presumed  in  immaterial. 
9  Ency.  of  Ev.  884;  2  Wigmore,  Ev.  Sec.  1353.  The  Legislature  can 
make  a  presumption  conclusive  unless  such  presumption  would  cut 
off  or  impair  some  right  given  and  protected  by  the  Constitution. 
No  provision  of  the  Constitution  is  cited  which  takes  from  the 
Legislature  the  power  to  define  and  prescribe  the  duties  of  the 
husband  to  his  wife  and  children  and  the  rights  to  which  the 
wife  shall  be  entitled  in  consequence  of  the  existence  of  the  marri- 
age status:  and  we  are  satisfied  that  the  Legislature  had  power 
to  provide  that  for  the  purposes  of  the  compensation  law  the. 
wife  'shall  be  conclusively  presumed  to  be  wholly  dependent' 
upon  her  husband  regardless  of  whether  she  had  or  had  not  been 
supported  by  him  in  his  lifetime.  The  duty  to  support  her  rested 
upon  him  as  a  continuing  obligation  which  could  have  been  en- 
forced at  any  time.  The  Legislature  could  recognise  the  existence 
of  this  obligation,  and  in  the  plenitude  of  its  power  could  make 
such  reasonable  provision  for  the  wife  under  the  compensation 

23.  Birmingham  v.  Westinghouse  Electric  &  Mfg.  Co.,  167  N.  Y.  S. 
620,  1  W.  C.  L.  J.  241,  16  N.  C.  C.  A.  179. 

24.  In  re  McDonald,  229  Mass.  445,  118  N.  E.  949,  1  W.  C.  L.  J.  808,  16 
N.  C.  C.  A.  87-214;    In  re  Derinza,  229  Mass.  435,  118  N.  E.  942,  1  W.  C. 
L.  J.  795,  16  N.  C.  C.  A.  87;    In  re  Mooradjlan,  229  Mass.  521,  118  N.  E. 
951,  1  W.  C.  L.  J.  812,  16  N.  C.  C.  A.  215,  920;    Kalclc  r.  Newport  Mining 
Co.,  197  Mich.  364,  163  N.  W.  962,  16  N.  C.  C.  A.  211;    In  re  Gorskl,  227 
Mass.  456,  116  N.  E.  811,  16  N.  C.  C.  A.  217. 

917 


§  368  WORKMEN'S  COMPENSATION  LAW 

law  as  it  deemed  just  and  proper.  Furthermore  even  if  the 
constitutional  guaranties  would  be  infringed  by  making  the  pre- 
sumption conclusive  in  other  cases,  they  would  not  be  infringed 
by  making  it  conclusive  under  the  compensation  law  for  the 
provisions  of  that  law  are  obligatory  only  upon  those  who  elect 
to  become  subject  to  it,  and  those  who  voluntarily  assume  the 
liabilities  imposed  by  the  law  in  order  to  secure  the  benefits  confer 
red  by  it  have  been  deprived  of  no  constitutional  right.  Matheson  v. 
Minneapolis  Street  Ry.  Go.,  126  Minn.  286,  148  N.  W.  71, 
L.  E,  A.  1916D,  412;  State  ex  rel.  v.  District  Court,  166  N.  W. 
185.  This  same  provision  was  involved  in  State  ex  rel.  v.  District 
Court,  137  Minn.  283  163  N.  W.  509,  but  its  validity  was  not 
challenged.  Similar  provisions  are  found  in  the  statutes  of  sev- 
eral states  and  their  validity  seems  not  to  have  been  questioned. 
Nelson's  Case,  217  Mass.  467,  105  N.  E.  357;  Finn  v.  Detroit, 
Mt.  C.  &  M.C.  Ry.  Co.,  190  Mich.  112,  155  N.  W.  721,  L.  R.  A. 
19.1.6C.  1142;  Northwestern  Iron  Co.  v.  Industrial  Commission 
154,  Wis.  97,  142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas. 
191 5B,  877.  "25 

A  father  who  is  totally  dependent  upon  his  minor  son  is  en- 
titled to  compensation,  though  the  father's  wife  is  living  with 
him  at  the  time  of  the  accident,  since  the  statutory  presumption, 
that  a  husband  is  conclusively  presumed  to  be  dependent  upon 
the  wife  with  whom  he  is  living  does,  not  arise  until  she  is  in- 
jured.26 

Under  the  New  Jersey  Act,  illegitimate  children  forming  a  part 
of  deceased's  household  at  the  time  of  his  death  are  presumed  to 
be  dependent.  »An  illegimate  posthumous  child  is  held  to  form 
part  of  deceased's  household  and  to  fall  within  the  statutory  pre- 
sumption.27 

25.  State  ex  rel.  London  &  Lancashire  Indemnity  Co.  v.  District  Court 
of  Hennepin  County,  139  Minn.  409,  166  N.  W.  772,  1  -v.  C.  L.  J.  835,  16 
N.  C.  C.  A.  78. 

26.  Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025,  13  N.  C 
C.  A.  315. 

27.  Klimchak  v.  Ingersoll  Rand  Co.,  39  N.  J.  L.  J.  275,  13  N.  C.  C.  A. 
274. 


918 


DEPENDENCY.  §   368 

A  wife  living  apart  from  her  husband  in  the  belief  that  in  so 
doing  a  reconcilation  would  be  effected,  but  with  no  definite 
agreement  that  they  should  again  resume  marital  relations,  sup- 
porting herself,  though  the  husband  sent  money  at  times,  couM 
not  be  said  to  come  within  the  statutory  presumption  as  to  total 
dependency  of  a  wife  living  with  her  husband,  even  though 
she  returned  in  response  to  a  telegram  at  the  time  of  his  injury 
and  spent  the  last  hour  or  two  with  him  at  the  hospital  before 
he  died.28 

It  is  held  under  the  Massachusetts  Act  that  a  wife  living  apart 
from  her  husband  is  not  entitled  to  the  conclusive  presumption  of 
dependency,  but  whether  or  not  she  is  dependent  is  a  question 
of  fact.2* 

tinder   the   same   Act   a   child   under  the   age  of   18   is   pre- 
sumed dependent  upon  the  parent  with  whom  he  is  living  at  the 
time  of  such  parent's  death,  ''there  being  no  surviving  dependent 
parent,"  and  the  presumption  is  conclusive,  conditioned  upon  the 
non  existence  of  a  surviving  dependent  parent.30 

The  relation  of  husband  and  wife,  having  once  existed,  is  pre- 
sumed to  continue.81 

Where  a  statute  provides  compensation  to  parties  conclusively 
presumed  to  be  dependent,  further  compensation  may  be  awarded 
to  such  presumptive  dependents  even  after  the  period  of  pre- 
sumptive dependency  expires,  if  there  remains  a  condition  of  ac- 
tual dependency,  such  as  daughters  over  the  age  of  18  actually 
dependent  upon  a  parent,  on  account  of  being  physically  or 
mentally  incapacitated  from  earning.32 

28.  Finn  v.   Detroit,   Mount  Clemens  &   Marine  City  Ry.,    190  Mich. 
112,  155  N.  W.  721,  13  N.  C.  C.  A.  187. 

29.  In  re  Gallagher,  219  Mass.   140,  106  N.  E.  558,  9  N.  C.  C.  A.  586; 
In  re  Nelson,  217  Mass.  467,  5  N.  C.  C.  A.  694;     In  re  Bentley,  217  Mass. 
79,  104  N.  E.  432  4  N.  C.  C.  A.  559. 

30.  In  re  McNicol,  215  Mass.  497,  102  N.  E.  697,  4  N.  C.  C.  A.  522. 

31.  State  ex  rel.  Coffey  v.  Chittendend,   112  Wis.  569,  88  N.  W.  587. 

32.  In  re  Herrick,  217  Mass.  Ill,  104  N.  E.  432,  4,  N.  C.  C.  A.  P54; 
Peabody  Coal  Co.  v.  Ind.  Bd.,  281  111.  579,   117  N.  E.  983,  1  W.  C.  1 .  J. 
524,  16  N.  C.  C.  A.  143;    State  ex  rel.  Maryland  Cas.  Co.  v.  District  Court 
of  Ramsey  Co.,  134  Minn.  131,  158  N.  W.  798,  13  N.  C.  C.  A.  263;    In  re 
Carter  221  Mass.  105,  108  N.  E.  911.    Nebr.  1921  Am.  3665  §  111. 

919 


§  369  WORKMEN'S  COMPENSATION  LAW 

Under  the  Massachusetts  Act,  when  there  is  a  widow  and  a  child 
under  the  age  of  18  years,  the  widow  is  presumed  to  be  entirely 
dependent  and  the  compensation  should  be  paid  exclusively  to  her, 
though  the  act  now  reads ;  ' '  to  the  wife  or  husband  for  her  or  hh 
own  use  and  for  the  benefit  of  her  or  his  own  children . '  '33 

A  child  by  a  former  wife  is  presumed  to  be  equally  dependent 
with  a  surviving  wife,  and  shares  benefits  equally  with  such 
widow,  even  though  there  are  several  children  by  the  surviving 
widow.  But  the  Massachusetts  Act  was  later  amended  to  read  as 
follows:  "The  death  benefit  shall  be  divided  between  the  surviv- 
ing wife  or  husband  and  all  the  children  of  the  deceased  employee 
in  equal  shares,  the  surviving  wife  or  husband  taking  the  same 
share  as  a  child."34 

The  conclusive  presumption  that  certain  children  are  dependent 
upon  the  father  does  not  prelude  proof  of  actual  dependency  upon 
the  mother,  and  upon  a  finding  of  dependency  upon  the  mother 
compensation  will  be  allowed  for  the  death  of  the  mother  even 
though  the  father  is  living.35 

There  is  no  presumption  that  parents  are  dependent  upon  their 
children  and  the  burden  of  proving  the  dependency  rests  upon  the 
claimant.3" 

"Where  the  mother  had  been  given  custody  of  a  minor  son  in 
divorce  proceedings  and  upon  her  death  the  father  voluntarily 
resumed  the  responsibility  of  supporting  the  child,  the  boy  was 
dependent  upon  him  even  though  at  the  time  of  the  death  he  was 
working  for  a  third  person  for  his  board.37 

§  369.  Wife  Living  Apart  from  Husband. — A  wife  living  with 
her  son  temporarily  according  to  an  agreement  between  her  de- 

33.     In  re  Employer's  Liab.  Assur.  Corp,  McNicol,  and  Patterson,  102  N-  E. 
697,   215  Mass.  497,  4  N.  C.  C.  A.  522. 

34.  Coakley  v.  Coakley,  102  N.  E.  930,  216  Mass.  71,  4  N.  C.  C.  A.  508. 
Note:   For  question  of  husband  and  wife  living  apart,  see  section  369. 

35.  Johnson  Coffee  Co.  v.  McDonald,  —  Tenn.  — ,  (1920),  226  S.  W.  215. 

36.  Milwaukee  Basket  Co.  v.  Indus.  Comm.  — ,  Wis.  — ,  (1921),  181  N. 
W.  308. 

37.  Pac.  Gold  Dredging  Co.  v.  Indus.  Comm.,  —  Cal.  — ,  (19°0),  194  Pac. 
1,  7  W.  C.  L.  J.  266. 

920 


DEPENDENCY.  §    369 

ceased  husband  and  herself,  on  account  of  her  ill  health,  was  living 
with  her  husband  at  the  time  of  his  death  within  the  meaning  of 
the  compensation  act.38 

When  the  statute  provides  that  a  wife  shall  be  conclusively 
presumed  to  be  dependent  upon  her  husband  "with  whom  she 
lives,"  and  contains  no  provision  that  such  presumption  shall  obtain 
when  the  wife  is  living  apart  from  her  husband,  the  question  ot 
her  dependency  upon  him  is  one  of  fact.  The  words  "with  whom 
she  lives"  have  been  held  to  mean  that  husband  and  wife  are 
living  together  as  husband  and  wife  in  the  ordinary  acceptation 
and  significance  of  these  words  in  common  understanding;  that 
they  are  maintaining  a  home  and  living  together  in  the  same  house- 
hold, or  actually  cohabiting  under  conditions  which  would  be 
regarded  as  constituting  a  family  relation.89 

A  broader  view  of  the  meaning  of  these  words  has  been  taken, 
however,  and  one  more  consistent  with  reason.  This  view  holds 
the  question  to  be  largely  one  of  intention,  like  the  question  of  one's 
domicile.40 

Accordingly  it  does  not  turn  upon  time  or  distance  separating 
the  parties,  but  upon  the  nature  and  character  of  the  absence 
and  the  intention  of  the  parties  respecting  it.  Where  there  is  no 
legal  separation  and  no  actual  separation  in  the  nature  of  an 
estrangement,  the  husband  and  wife  are  "living  together,"  al- 
though they  may  not  be  physically  dwelling  together,  and  in  such 
case  the  wife  is  entitled  to  the  benefit  of  the  statutory  provision 
creating  a  conclusive  presumption  as  to  her  dependency.41 

38.  Bell  City  Malleable  Iron  Co.  v.  Rowland,  170  Wis.  293,  (1919),  174 
N.  W.  899,  5  W.  C.  L.  J.  333;  N.  W.  Iron  Co  v.  Indus.  Comm.,  164  Wis. 
97,  142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877. 

39.  Gallagher's  Case,  219  Mass.  140,  H'6  N.  E.  558;    Nelson's  Case, 
217  Mass.  467,  105  N.  E.  357;  State  ex  rel.  Kile  v.  District  Court,  —  Minn. 
— ,  (1920),  177  N.  W.  934,  6  W.  C.  L.  J.  344. 

40.  Williams  v.  Williams,  322  Wis.  27,  98  N.  W.  431;    Thompson  v. 
Thompson,  53  Wis.  153,  10  N.  W.  166;    Miller  v.  Sovereign  C.  W.  of  W., 
140  Wis.  505,  122  N.  W.  1126,  28  L.  R.  A.  (N.  S.)  178,  133  Am.  St.  Rep. 
1095. 

41.  Northwestern  Iron  Co.  v.  Industrial  Comm..  154  Wis.  97,  142  N.  W. 
271.  L.  R.  A.  1916  A.  366,  Ann.  Cas.  1915,  B.  877. 

921 


§  369  WORKMEN'S  COMPENSATION  LAW 

"This  seems  to  be  the  reasonable  and  practical  construction 
of  the  law,  and  the  one  which  we  think  the  legislature  intended. 
If  the  law  should  receive  the  construction  that  there  must  be 
physical  dwelling  together  in  order  to  satisfy  the  statute,  it  is 
plain  that  the  purpose  of  the  law  would  in  many  cases  be  defeat- 
ed, because  in  many  cases  the  spouse  may  be  absent  from  home 
for  long  intervals,  although  there  be  no  break  in  the  marriage 
relation,  no  estrangement ?  and  no  intent  to  separate  or  sever  the 
existing  relation  or  change  the  relations  or  obligations  created  by 
the  marriage  contract,"42 

The  question  of  whether  or  not  the  husband  and  wife  were 
living  together  is,  of  course,  one  of  fact ;  but  when  they  are  found 
to  have  been  living  together,  the  presumption  of  dependency  is  one 
of  law.  To  justify  a  finding  that  husband  and  wife  are  not  living 
together,  there  must  be  an  intentional  or  permanent  separation 
or  estrangement;  and  temporary  absence,  such  as  is  necessitated 
by  employment,  visits,  or  conveniences,  do  not  suffice.43 

A  wife  living  apart  from  her  husband  by  agreement  and  not  re- 
ceiving her  support  from  him,  is  not  a  dependent  within  the 
meaning  of  the  act.44 

The  same  is  true  of  a  wife  living  apart  from  her  husband,  suing 
for  divorce,  and  seeking  no  support  from  him.45 

42.  Northwestern  Iron  Co.  v.  Industrial  Comm.  154  Wis.  97,  102,  142 
N.  W.  217,  L.  R.  A.  1916  A,  366,  Ann.  Gas.  1915  B,  877. 

43.  W.  Baird  &  Co.  v.  Padolska,  8  F.    438,  43  Sc.  L.  R.  300,  6  N.  C. 
C.  A.  251;  State  Comp.  Ind.  Fund  v.  Breslow,  1  Cal.  I.  A.  C.  B.  No.  12, 
6  N.  C.  C.  A.  251;     Queen  v.  Clark,  (1906),  2  I.  R.  135,  40  I.  R.  L.  T.  19, 
6  N.  C.  C.  A.  251;  Coulfchard  v.  Consett  Iron  Co.,  8  W.  C.  C.  87;  Nevadjic 
v.  Northwestern  Iron  Co.,  154  Wis.  97,  142   N.  W.  271,  L.  R.  A.  1916  A, 
366,  Ann.  Cas.  1915  B,  877;  Morris  v.  Yough  Coal  and  Supply  Co.  —  Pa. 
— ,  (1920),  109  Atl.  914,  6  W.  C.  L.  J.   210. 

44.  Burdick  v.  Grand  Trunk  Ry.  System,  —  Mich.  — ,   (1919),  175  N. 
W.  132,  5  W.  C.  L.  J.  266;    Sweet  v.  Sherwood  Ice  Co.,  40  R.  I.  203,  100 
Atl.  316,  16  N.  C.  C.  A.  84;    Mclnroy  v.  M'Glashen  &  Son,  Ltd.,   (1908), 
Sc.  762,  1  B.  W.  C.  C.  85,  6  N.  C.  C.  A.  248;    Polled  v.  G.  N.  R.  Co.,  (1912), 
W.  C.  &  Ins.  Rep.  379,  6  N.  C.  C.  A.  248;  Lee  v.  Bessie,  (1912),  1  K.  B. 
85,  5  W.  C.  C.  55,  6  N.  C.  C.%  A.  249;  Turners  Ltd.  v.  Gillies,  41  Sc.  L.  R. 
631,  6  N.  C.  C.  A.  249. 

45.  Perry  v.  Industrial  Ace. Comm.,  176  Cal.  706,  169  Pac.  353,  1  W. 
C.  L.  J.  474,  16,  N.  C.  C.  A.  83. 

922 


DEPENDENCY.  §    360 

On  the  other  hand,  where  a  wife  is  justified  in  living  apart 
from  her  husband,  it  is  held  that  she  is  not  precluded  from  the 
benefits  of  the  presumption  of  dependency.48  And  such  justifica- 
tion is  established  when  the  husband  is  shown  to  be  living  in 
adultery  with  another  woman.47 

In  Massachusetts,  however,  it  has  been  held  that  although  a 
wife  is  justified  in  living  away  from  her  husband,  the  fact  that 
they  are  not  living  together  destroys  the  presumption  of  her 
dependency,  which  is  then  a  question  of  fact.48  The  Massachusetts 
Act  has  been  amended,  and  now  there  is  a  conclusive  presumption 
of  dependency  of  the  wife  who  has  been  deserted  by  her  husband 
or  who  is  living  apart  from  him  for  justifiable  cause. 

Evidence  of  an  actual  separation  in  the  nature  of  an  estrange- 
ment for  more  than  a  year  and  a  half,  is  sufficient  to  support  a 
finding  that  the  parties  were  not  living  together  as  husband  and 
wife,  within  the  meaning  of  the  act.48 

Contrary  to  the  above,  it  is  held  in  Illinois  that  a  wife  living 
apart  from  her  husband  and  not  actually  dependent  upon  him, 
is  entitled  to  be  considered  a  dependent,  if  the  husband  is  under 
a  legal  obligation  to  support  her.50 

Where  a  husband  and  wife  are  living  apart  and  he  sends 
money  for  her  support  and  the  maintenance  of  their  family  home 
there  is  a  sufficient  compliance  with  the  provision  of  the  act 

46.  State  ex  rel.  v.  District  Court  of  Hennepin  County,  139  Minn.  409, 
166  N.  W.  772,  1  W.  C.  L.  J.  836,  16  N.  C.  C.  A.  80;  State  ex  rel.  Grant 
Const.  Co.  v.  Dist  Ct.  of  Ramsey  County,  137  Minn.  283,  163  N.  W.  509. 

47.  H.  G.  Goelitz  Co.  v.   Industrial  Board,  278  111.  164,  lib  N.  E.  855, 
16  N.  C.  C.  A.  80. 

48.  In  re  Gallagher,  219  Mass.  140,  9  N.  C.  C.  A.  586;    In  re  Nelson. 
217  Mass.  467,  5  N.  C.  C.  A.  694;    In  re  Bentley,  217  Mass.  79,  4  N.  C.  C. 
A.  559;  In  re  Newman,  222  Mass.  563,  111  N.  E.  369,  L.  R.  A.  1916C,  1145; 
In  re  Fierro's  Case,  222  Mass.  378,  111  N.  E.  957. 

49.  Smith  v.  Scheiddeger,  170  Wis.  162,  (1919),  174  N.  W.  462,  5  W. 
C.  L.  J.  123. 

50.  American  Milling  Co.  v.  Indus.  Bd.  of  111.  278,  111.  560,  117  N.  E.  147, 
16  N.  C.  C.  A.  86;  Goelitz  Co.  v.  Indus.  Bd.,  278  111..  164,  115  N.  E.  855,  16 
N.  C.  C.  A.  80;    Smith -Lohr  Coal  Mining  Co.    v.  Indus.  Comm..  286  111. 
34,  121  N.  E.  231,  3  W.  C.  L.  J.  250;    Cunningham  v.  McGregor,  38  8.  L. 
R.  574;    Atlanta  R.  R.  v.  Gravitt,  26  L.  R.  A.  553. 

923 


§  369  WORKMEN'S  COMPENSATION  LAW 

requiring  husband  and  wife  to  be  living  together  in  order  to 
create  a  conclusive  presumption  of  dependency.51 

In  a  case  in  which  the  wife  denied  the  allegations  of  her  deceased 
husband's  divorce  petition  to  the  effect  that  she  drove  him  from 
their  home,  the  court  said:  "The  fact  that  parties  thus  situated 
live  separate  and  apart  from  each  other  might,  standing  alone, 
give  rise  to  an  inference  that  it  was  voluntary  on  the  part  of 
each.  But  any  such  inference  is  sufficiently  rebutted  in  this  case. 
"It  may  be  remarked  in  passing  that  the  expression  'voluntarily 
living  apart  from  her  husband,'  as  used  in  this  statute  (Minn. 
Gen.  St.  1913,  Sec.  8208,  as  amended  by  chapter  209,  Laws  of 
1915),  means,  and  should  be  construed  to  mean,  the  free  and 
intentional  act  of  the  wife  uninfluenced  by  extraneous  causes,  or 
as  it  might  be  otherwise  expressed,  her  choice  deliberately  made 
and  acted  upon."52 

Where  a  wife1  left  her  husband  six  months  before  the  occurrence 
of  an  accident,  resulting  in  his  death,  had  supported  herself, 
though  the  husband  had  sent  her  some  money  during  this  time,  and 
she  returned,  in  response  to  a  telegram  from  his  employer's  claim 
agent,  and  stayed  with  her  husband  at  the  hospital  for  an  hour  or 
two  until  he  died,  she  is  not  to  be  conclusively  presumed  to  be  totally 
dependent  upon  her  husband,  though  she  testified  that  she  sepa- 
rated from  her  husband  because  of  differences  of  religious  faith, 
etc.,  and  in  the  belief  that  her  doing  so  would  eventually  result  in 
their,  reconciliation.53 

An  insane  wife  cared  for  by  the  state  for  nine  years  is  not  a 
dependent,  for  a  wife  living  apart  from  her  husband  must  be 
actually  dependent  upon  and  receiving  support  from  her  husband 
at  the  time  of  his  death.54 

51.  Muncie  Foundry  &  Machine  Co.  v.  Coffee,  64  Ind.  App.  — ,  117  N. 
E.  524,  1  W.  C.  L.  J.  78,  16  N.  C.  C.  A.  82;  Coletrane  v.  Ott,  —  W.  Va. 
—    (1920),  103  S.  E.  102,  6  W.  C.  L.  J.  232. 

52.  State  ex  rel.  Geo.  J.  Grant  Const.  Co.  v.  District  Court  of  Ramsey 
County,  137  Minn.  283,  163  N.  W.  509,  16  N.  C.  C.  A.  79. 

53.  Finn    v.  Detroit,    Mount  Clemens  &   Marine  City    Ry.,  190    Mich. 
112,  155  N.  W.  721,  13  N.  C.  C.  A.  187. 

54.  Roberts  v.  Whaley,  192  Mich.  133,  158  N.  W.  209,  13  N.  C.  C.  A.  189; 
Berlin  v.  Chesky,  —  Wis.  Ind.  Conim.  — ,  6  N.  C.  C.  A.  269. 

924 


DEPENDENCY.  §    369 

Where  the  deceased  left  his  wife  and  refused  to  support  her, 
whereby  she  was  compelled  to  rely  upon  her  step  sons  for  support, 
the  court,  in  holding  that  she  was  entitled  to  compensation,  said: 
"The  mere  fact  that  one  of  the  parties  to  a  marriage  contract 
desires  to  break  the  contract  and  neglect  his  duties  under  the 
same  does  not  release  him  from  those  duties  and  obligations,  un- 
less the  other  party  to  the  contract  consents  to  the  same  and 
waives  her  rights  under  the  said  contract  of  marriage."58 

A  wife  living  apart  from  her  husband,  because  the  husband  was 
unable  to  earn  sufficient  to  have  a  home,  may  be  dependent  upon 
him  if  he  actually  contributes  to  her  support.86 

Under  the  New  Jersey  and  English  Acts  a  wife  living  apart  from 
her  husband  for  justifiable  cause  and  not  relinquishing  her  claim 
upon  him  for  support,  but  seeking  to  enforce  it  through  processes 
of  court  is  dependent  upon  the  husband,  despite  the  fact  that  at  the 
time  of  his  death  he  was  evading  an  order  of  the  court  to  support 
his  wife  and  child  and  the  widow  was  supporting  herself  and 
child.57  But  in  the  New  Monckton  Colleries  case  the  court  held 
that  there  was  conclusive  evidence  that  the  applicant  was  in 
fact  not  a  dependent  upon  her  husband's  earnings  nor  in  any 
way  claiming  the  fulfillment  of  his  duty  towards  her.  The  fact 
that  a  husband  is  liable  for  the  support  of  his  wife  in  law  is  not 
of  itself  sufficient  evidence  to  support  a  claim  for  compensation 
by  the  widow.  "Money  coming  to  a  widow  under  the  act  is  not 
a  present  in  consideration  of  her  status;  it  is  a  payment  by  a 
third  person  to  compensate  her,  as  a  dependent,  for  her  actual 
pecuniary  loss  by  her  husband's  death,  and  *  *  *  there  is  no 
rule  of  law  to  prevent  the  arbitrator  from  finding  that,  though 

55.  McHugh  v.  E.  J.  Dupont,  De  Nemours  &  Co.,  39  N.  J.  L.  J.  153, 
13  N.  C.  C.  A.  193. 

56.  Veber  v.  Mass.  Bonding  &  Ins.  Co.,  224  Mass.  86,  112  N.  E.  485,  13 
N.  C.  C.  A.  196;  In  re  Newman,  222  Mass.  563,  111  N.  E.  359,  13  N.  C.  C. 
A.  197;   Morris  v.  Yough  Coal  and  Supply  Co.,  —  Pa.  — ,  (1920),  109  Atl. 
914,  6  W.  C.  L.  J.  210. 

57.  Young  v.  Niddrie  &  Benhar  Coal   Co.,    (1913),  6  B.  W.  C.  C.  774; 
Medler  v.    Medler,    (1908),   1   B.   W.  C.    C.  332;    Mees   v.  P.  BallanUne 
&   Sons   Inc.,   37  N.  J.  L.   Ill,  9  N.  C.  C.  A.  587;   New    Monckton  Col- 
leries, Ltd.  v.   Keeling,    (1911),  A.  C.  648,  6  N.  C.  C.  A.  240,   106   L.   T. 
337,  4  B.  W.  C.  C.  332,  27  T.  L.  Rep.  551. 

925 


§  370  WORKMEN'S  COMPENSATION  LAW 

married  to  the  deceased,  the  applicant  was  not  in  fact  dependent 
upon  him." 

Where  a  husband  and  wife  lived  together  only  occasionally  and 
for  short  periods,  and  the  husband  paid  the  doctor's  and  grocer's 
bills,  bought  clothes  for  his  child  and  gave  money  to  his  wife, 
who  was  also  earning  money,  it  was  held  that  it  was  a  question 
of  fact  for  the  industrial  commission  to  determine  whether  the 
wife  was  living  apart  from  her  husband  for  a  justifiable  cause.58 

And  a  wife  living  apart  from  her  husband  because  at  the  time 
of  the  separation  he  was  not  able  to  support  her,  but  at  the  time 
of  his  death  he  was  able  to  support  her,  is  not  living  apart  for 
justifiable  cause.59 

Where  a  husband  upon  leaving  an  insane  asylum,  had  gone  to 
reside  some  distance  from  his  wife,  it  was  held  that  in  view  of 
the  fact  that  the  husband  had,  upon  previous  occasions,  shown 
antipathy  towards  his  wife,  she  was  justified  in  living  apart  from 
him  until  he,  at  least  had  shown  some  inclination  to  have  her 
reside  with  him.60 

The  fact  that  a  husband,  who  was  living  apart  from  his  wife, 
contracted  a  bigamous  marriage,  will  not,  of  itself,  defeat  his 
widow's  right  to  compensation.61 

§  370.  Dependency  and  Matters  Related  Thereto  Questions  of 
Law  or  of  Fact — Dependency,  its  extent,  and  persons  entitled  to 
compensation,  are  questions  of  fact  for  the  industrial  commission 
to  determine  in  all  cases,  other  than  the  cases  of  those  persons  con- 
clusively presumed  to  be  dependent.02  and  unless  the  commission 

58.  Veber  v.  Massachusetts  Bonding    &  Ins.    Co.,  224    Mass.    86,    112 
N.  E.  485. 

59.  In  re  Newman's  Case,  111  N.  E.  359,   222  Mass.  563. 

60.  Gates  v.   A.  G.  Dewey  Co.,  —  Vt.   — ,  (1920),  111   Atl.  446,   6  W. 
C.  L.  J.  719. 

61.  Coletrane  v.  Ott,  —  W.  Va.  — ,  (1920),  103  S.    E.    102,    6    W.    C. 
L.  J.  232. 

62.  Keller  v.  Indus.  Comm.,  291  111  314,  (1920),  1?6  N.  E.  162,  5  W.  C. 
L.  J.  665;      Rock  Island   Bridge   &  Iron  Works   v.  Indus.  Comm.,   287  111. 
648,  122   N.   E.   8^0,  4  W.   C.  L.  J.  33;    O'Flynn's    Case,  232  Mass.   582, 
(1919),    122  N.   E.  767,   4  W.  C.   L.  J.  105;     Perotti't,  Case,  233  Mass.  297, 
(1919),  123  N.  E.   776,  4  W.  C.  L.  J.  391;    Hodgson  v.  West  Stanely  Col- 

926 


DEPENDENCY.  §    370 

has  applied  an  illegal  standard,  or  found  a  fact  without  evidence 
to  support  it,  the  court  cannot  review  its  finding. 83 

On  appeal,  the  question  whether  there1  was  any  evidence  to  sup- 
port the  finding  of  the  board  or  commission,  is  one  of  law.8* 

"There  has  befen  a  good  deal  of  divergence  in  judicial  opinion  as 
to  what  dependency  means.  There  has  been  a  disposition  to  draw 
highly  refined  distinctions,  and  the  decisions  arrived  at  and  the  rea- 
sons for  them  have  not  always  been  consistent.  I  think  that  this 

liery,  3  B.  W.  C.  C.  260,  6  N.  C.  C.  A.  285;  Fennimore  v.  Pittsburg 
Scammon  Coal  Co.,  100  Kan.  272,  164  Pac  265,  16  N.  C.  C.  A.  176;  Garcia 
v.  Indus.  Comm.,  171  Cal.  57,  151  Pac.  741,  13  N.  C.  C.  A.  316;  Simmons 
v.  White  Bros.  Co.,  (1899),  1  Q.  B.  1005,  6  N.  C.  C.  A.  285;  Tamworth 
Colliery  Co.  v.  Hall,  (1912),  W.  C.  &  Ins.  Rep.  79,  6  N.  C.  C.  A.  285; 
In  re  Herrick,  217  Mass.  Ill,  104,  N.  E.  432;  In  re  Newman's  Case,  222 
Mass.  563,  111  N.  E.  359,  L.  R.  A.  1916  C,  1145;  Hartley  v.  Boston  &  N. 
St.  Ry.(  198  Mass.  163,  83  N.  E.  1093;  Potts  v.  Niddrie  &  Benhar  Coal  Co., 
(1913),  A.  C.  531;  Petrozino  v.  Amer.  Mut.  Liab.  Co.,  219  Macs.  498,  107 
N.  E.  370;  Miller  v.  Public  Service  Ry.  Co.,  84  N.  J.  Law,  174,  85  Atl. 
1030;  Appeal  of  Hotel  Bond  Co.,  89  Conn.,  143,  93  Atl.  245;  Main  Colliery 
Co.,  Ltd.,  v.  Davies,  16  T.  T.  460;  Houlihan  v.  Connecticut  River  R.  R.t 
164  Mass.  555,  42  N.  E.  108;  American  Legion  of  Honor  v.  Perry,  140 
Mass.  580,  5  N.  E.  634;  Miller  v.  Riverside  Storage  Co.,  189  Mich.  360. 
155  N.  W.  462;  State  ex  rel.  Globe  Indemnity  Co.  v.  District  Court,  132 
Minn.,  249,  156  N.  W.  120;  Muzik  v.  Erie  R.  Co.,  85  N.  J.  Law,  131,  89  Atl. 
248,  86  N.  J.  Law,  695,  92  Atl.  1087;  Havey  v.  Erie  R.  Co.,  88  N.  J.  Law, 
684,  96  Atl.  995;  Walz  v.  Holbrook,  Cabot  &  Rollins  Corp.,  170  App.  Div. 
6,  155  N.  Y.  Supp.  703;  Rockford  Cabinet  Co.  v.  Indus.  Comm.,  —  111.  — , 
(1920),  129  N.  E.  142,  7  W.  C.  L.  J.  280;  Day  v.  Sioux  Falls  Fruit  Co.,  — , 
S.  Dak.  — ,  (1920),  177  N.  W.  816,  W.  C.  L.  J.  216;  Southern  Surety  Co. 
v.  Hibbs,  —  Tex.  Civ.  App.  — ,  (1920),  221  S.  W.  303,  6  W.  C.  L.  J.  225; 
MacDonald  v.  Employers  Ass'n.  Liab.  Corp.,  — Me.  — ,  (1921),  112  Atl.  719. 

63.  McDonald  v.  Great  Atlantic  &  Pacific  Tea  Co.,  —  Conn.  — ,  (1920), 
111  Atl.  65,  6  W.  C.  L.  J.  525;  McVicar  v.  Indus.  Comm.  of  Utah,  —  Utah 
— ,  (1920),  191  Pac.  1089,  6  W.  C.  L.  J.  596;    Geo.  A.  Lowe  v.  Indus.  Comm. 
of  Utah,  —  Utah—,  190  Pac.  934;  Alden  Coal  Co.  v.  Indus.  Comm.,  —  111. 
— ,  (1920,  127  N.  E.    341,  6  W.  C.  L.  J.  274;    Henry  Pratt  Co.  v.  Indus. 
Comm.,  —  111.  — ,  (1990),  127  N.  E.  754,  6  W.  C.  L.  J.  296;  Globe  Grain  & 
Milling  Co.  v.  Indus.  Comm.,  —  Utah  — ,  (1920).  193  Pac.  642,  7  W.  C.  L.  J. 
245. 

64.  In  re  Herrick,  217  Mass.  Ill,  104  N.  E.  433,  4  N.  C.  C.  A.  554;    Hoff 
v.  Hackett,  148  Wis.  32,  134  N.  W.  132;   Northwestern  Iron  Co.  v.  In- 
dustrial Comm.,  154  Wis.  97,  142  N.  W.  271,  L.  R.  A.  1916  A  366;  Hancock 

927 


§  370  WORKMEN'S  COMPENSATION  LAW 

tendency  and  its  consequences  will  be  lessened  if  it  is  borne  firmly 
In  mind  that  the  question  is  always  primarily  one  of  fact.65 

Whether  a  widow  and  deceased  husband  were1  living  together  at 
the  time  of  the  injury  is  a  question  of  fact. 66 

Expenses  incurred  on  account  of  a  deceased  minor  son  are  per- 
tinent in  determining  dependency,  but  immaterial  in  ascertaining 
the  amount  of  compensation  when  dependency  is'  established.  And 
the  question  of  dependency  is  to  be  determined  on  conditions  ex- 
isting r.t  the  time  of  the  injury.'67 

"It  is  clear  from  this  section  of  the  act  that  the  widow  is  conclu- 
sively presumed  to  be  wholly  dependent.  It  is  equally  clear  that 
the  daughter,  who  is  13  years  of  age,  is  not  conclusively  presumed 
to  be  wholly  de-pendent,  because  it  appears  that  she  was  not  living 
with  her  father  at  the  time  of  his  death.  So  that,  if  the  daughter 
is  entitled  to  compensation,  it  must  be  because  she  is  shown  to  be 
wholly  dependent  on  the  decedent  under  that  portion  of  said  act 
which  provides:  'In  all  other  cases  the  question  of  dependency  in 
whole  or  in  part  shall  be  determined  in  accordance  with  the  fact,  as 
the  fact  may  be  at  the  time  of  the  injury.'  While  it  may  be  con- 
ceded, as  contended  by  appellant,  that  there  was  a  legal  as  well  as 
a  moral  obligation  resting  upon  decedent  to  support  his  daughter, 
yet  the  question  of  dependency,  in  cases  such  as  this,  is  not  to  be 
determined  upon  such  obligations,  although  they  are  to  be  taken  in- 

et  al.  v.  Indus.  Comm.,  —  Utah  — ,  (1921),  198  Pac.  169. 

65.  Young  v.  Niddrie  &  B.  Coal  Co.,  29  T.  L.  Rep    626,  6  B.  W.  C.  C. 
774,  82  L.  J.  P.  C.  147.  Morris  v.  Yough  Coal  &  Supply  Co.  —  Pa.  — , 
(1920),  109  Atl.  914,  6  W.  C.  L.  J.  210. 

66.  Smith  v.  Indus.   Comm.,  170  Wis.  162,    (1919),  174  N.  W.  462,   5 
W.  C.  L.  J.  123,  174  N.  W.  462;  Iron  Co.  v.  Indus.  Comm.,  154  Wis.  97  142  N. 
W.  271,  3  N.  C.  C.  A.  670;  In  re  Nelson,  217  Mass.  467,  105  N.  E.  357,  5  N.  C. 
C.  A.  694;    Taylor  v.  Seabrcok,  87  N.  J.  L.  407,   94  Atl.  399;    Travelers 
Ins.  Co.  v.  Hallauer,  131  Wis.  371,  111  N.  W.  527. 

67.  Freeman's   Case,   233  Mass.   287,    (1919),  123  N.  E.   845,  4  W.  C. 
L.  J.  498;    Mulraney  v.  Brooklyn  Rapid  Transit  Co.,  180  N.  Y.  S.  654,  5 
W.  C.  L.  J.  731;   Botts  Case,  230  Mass.  152,    119  N.  E,  755;    Kenney's 
Case,    222   Mass.   401,   111   N.   E.    47;     Pinel   v.    Rapid    R.    System,   184 
Mich.  169,  150  N.  W.  879;    Blanton  v.  Wheeler,  etc.,  Co.,  91  Conn.  226,  99 
Atl.  494;    Birmingham  v.  Electric,  etc.,  Co.,  180  App.  Div.  48.  167  N.  Y. 
Supp.  520;    Dazy  v.  Apponaug  Co.,  36  R.  I.  81,  89  Atl.  160. 

928 


DEPENDENCY.  §    370 

to  consideration  when  the  question  of  dependency  is  to  be  deter- 
mined as  a  matter  of  fact.  Also,  the  fact  that  decedent  was  order- 
ed, in  the  divorce  proceeding  referred  to,  to  pay  $8  per  month  for 
the  support  of  his  child,  may  be  taken  into  account  to  determine 
the  existence  of  the  ultimate1  fa^t  of  dependency.  Likewise,  wheth- 
er there  is  any  probability  that  such  order  would  be  discharged 
either  voluntarily  or  by  proper  legal  proceedings,  or  the  probabil- 
ity that  the  daughter  would  ever  seek  to  enforce  her  rights  under 
the  order,  if  the  requirements  thereof  were  not  voluntarily  com- 
plied with,  are  matters  which  would  be  proper  for  the  Industrial 
Board  to  consider  in  connection  with  all  other  competent  evidence 
to  aid  them  in  determining  the  question  of  fact  whether  or  not  ap- 
pellant at  the  time  of  her  father's  injury,  resulting  in  his  death, 
depended  upon  his  wages  for  her  support  in  whole  or  in  part."r>s 

"While  the  question  of  dependency  may  involve  principles  of 
law,  the  fact  remains  that  dependency  is  a  question  of  fact  to  be 
determined  from  all  the  circumstances  of  the  case,  and  the  burden 
of  proving  it  rests  upon  him  who  claims  it."69 

The  dependency  of  an  alien  wife  is  a  question  of  fact ; 70  and  so 
is  the  dependency  of  a  wife  living  apart  from  her  husband.71 

The  question  of  what  disposition  of  compensation  for  the  death 
of  an  employee1  is  in  proportion  to  the  respective  needs  of  the  de- 
pendents and  just  and  equitable,  even  to  the  total  exclusion  of  one 
or  more1  of  them,  is  one  of  fact  for  the  industrial  commission. 72 

68.  Schwartz  v.  Gerding  &  Auman  Bros., — Ind.  App. — ,  121  N-  B.  89, 
2  W.  C.  L.  J.  282. 

69.  Benjamin  F.  Shaw  Co.  v.  Palmatory,  —  Delaware  — ,  (1919),  105 
All.  417,  3  W.  C.  L.  J.  424;    Miller  v.  Public  Service   R.  Co.  84  N.  J.  L. 
174,  85  All.  1030,  3  N.  C.  C.  A.  593;    Muzik  v.  Erie  R.  Co.,  85  N.  J.  L. 
129,  89  Atl.  248.  4  N.  C.  C.  A.  732,  86  N.  J.  L.  695. 

70.  In  re  McDonald,  229  Mass.  454,  118  N.  E  949,  1  W.  C.  L.  J.  808.  16 
N.  C.  C.  A.  87,  214;   In  re  Derinza,  229  Ma*s.  435,  118  N.  E.  943,  1  W.  C. 
L.  J.  795,  16  N.  C.  C.  A.  87;    In  re  Mooradjian,  229  Mass.  521,  118  N.  E. 
951,  16  N.  C.  C.  A.  215,  920;    In  re  Fierro's  Case,  222  Mass.  378,  111  N. 
E.  958,  13  N.  C.  C.  A.  544. 

71.  In  re  Bentley,  217  Mass.  79,  4  N.  C.  C.  A.  559,  104  N.  E.  432. 

72.  Perry  v.  Indus.  Ace.  Comm.,  176  Cal.  709,  169  Pac.  353,  1  W.  C.  L. 
J.  474,  16   N.  C.C.  A.  83. 

929 

W.  C.— 59 


§  371  WORKMEN'S  COMPENSATION  LAW 

A  parent  may  be  dependent  upon  his  son  for  support  under  some 
circumstances,  but  the  court  is  not  required  to  hold  as  a  matter  of 
law  that  he  is  so  dependent  simply  because  he  receives  money  fiom 
his  son  and  spends  it. 73 

In  a  proceeding  for  compensation  by  a  widow,  it  appeared  that 
the  deceased  left  a  father,  brothers  and  sister.  No  proof  of  actual 
dependency  of  the  father,  brothers  or  sister  was  made,  and  the 
court  held  that  in  the  absence  of  such  proof  no  increase  in  the 
award  could  be  made,  for  there  was  no  presumption  of  their  de- 
pendency.74 

Where  the  contributions  of  the  deceased  to.  his  dependents  have 
not  been  constant,  either  as  to  time  of  payment  or  amounts,  the 
determination  of  what  that  amount  is  during  the  year  preceeding 
death,  rests  in  the  sound  discretion  of  the  commission,  based  on 
the  evidence.75 

The  existence  of  a  common-law  marriage  is  a  question  of  fact 
and  the  boards  finding  is  conclusive,  and  where  the  evidence  was 
not  clear  and  convincing  upon  this  point,  the  Board's  finding 
was  justified,  and  the  illegitimate  son  of  the  deceased  is  not  en- 
titled to  compensation  under  the  Michigan  Act.76 

§  371.  Partial  Dependents. — The  term  "actual  dependents," 
as  used  in  the  acts,  has  been  construed  to  mean  dependents  in 
fact,  whether  wholly  or  partially  dependent.77  And  a  person  may 
be  partially  dependent  even  though  the  contributions  be  at  irregular 
intervals  or  in  irregular  amounts,  and  though  the  dependent  has 
other  means  of  support,78  and  is  not  in  a  position  of  absolute 

73.  Main  Colliery  Co.   v.   Davies    (1900),  A.    C.    358,  6  N.    C.    C.    A. 
243,  2  W.  C.  C.  108,  83  L.  T.  83,  16  T.  L.  Rep.   46,  69  L.  J.  Q.  B.  755. 

74.  Miller  v.  Public  Service  R.'R.  Co.,  84  N.  J.  L.  174,  3  N.  C.  C.  A. 
593,  85  Atl.  1031. 

75.  Popst  v.    Industrial   Accident  C.    of  Cal.,  —  Cal.   — ,  192  Pac.  296, 
6  W.  C.  L.  J.  643. 

76.  Brown  v.  Long  Mfg.  Co.,  —  Mich.  — ,  (1921),  182  N.  W.  124. 

77.  Muzik  v.  Erie  Ry.  Co.,  86  N.  J.  L.  695,  92  Atl.  1087,  Ann.  Gas.  1916A 
140;  Jackson   v.  Erie  Ry.  Co.,    86  N.  J.  L.   550,  91  Atl.  1035;    Hammill  v. 
Penn.  R.  Co.,  87, N.  J.  L.  388,  94  Atl.  313;  Havey  v.  Erie  Ry.  Co.,  87  N. 
J.  L.  444,  95  Atl.  124;     Miller  v.  Pub.  Serv.   Ry.  Co.,   84  N.  J.  L.  174,  85 
.  tl.  1030;  Arrol  &  Co.  v.  Kelly,  7  F.  906,  42  S.  C.  L.  695. 

78.  Keller  v.  Indus.  Comm ,  291  111.  314,  (1920),  126  N.  E.  162,  5  W.  C. 
930 


DEPENDENCY.  §   371 

want.  78  Partial  dependency  is  based  upon  the  actual  contributions 
to  the  support  of  the  party,  and  not  upon  contributions  for 
purposes  other  than  support.80 

The  fact  that  the  contributions  received  were  not  essential 
to  the  support  of  life  does  not  bar  the  claimant  as  a  partial  de- 
pendent. The  test  that  has  been  laid  down  is,  whether  sucli 
contributions  were  relied  upon  by  him  for  his  means  of  living  ac- 
cording to  his  class  and  position  in  the  community.81 

This  test  may  be  applicable  under  some  acts  and  not  under 
others.  The  Connecticut  Act  makes  the  sole  test  one  of  dependen.  y 
while  the  English  Act  provides  that  in  cases  of  partial  dependency 
the  amount  recoverable  shall  be  reasonable  "and  proportionate 
to  the  injury  to  the  said  dependents."  Accordingly,  under  the 
latter  Act,  the  question  is  whether  the  claimant  has  suffered 
financial  injury  by  reason  of  the  death  of  the  deceased.  This  is  a 
very  broad  test,  if  a  test  at  all,  rather  than  an  element  only  among 

L.  J.  665;  Rock  Island  Bridge  &  Iron  Wks.  v.  Indus.  Comm.,  287  111.  648, 
(1919),  122  N.  E.  830,  4  W.  C.  L.  J.  33;  Walz  v.  Holbrook,  170  App.  Dlv. 
6,  155  N.  Y.  S.  703;  TIerre  v.  Bush  Terminal  Co.,  172  App.  Div.  386,  158 
N.  Y.  S.  883;  Rhyner  v.  Hueber  Bldg.  Co.,  171  App.  Div.  56,  156  N.  Y.  S. 
903;  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  All.  245;  Kennerson 
v.  Thames  Towboat  Co.,  89  Conn.  367,  94  All.  372,  L.  R.  A.  1916  A.  436; 
Smith  v.  National  Sash  &  Door  Co.,  96  Kan.  816,  153  Pac.  533;  Dodge  v. 
Boston  &  Providence  R.,  154  Mass.  299,  28  N.  E.  243,  13  L.  R.  A.  318; 
Bentley  v.  Mass.  Emp.  Ins.  Assn.,  217  Mass.  79,  104  N.  E.  423;  Krauss 
v.  Geo.  H.  Fritz  &  Sons,  87  N.  J.  L.  321.  13  N.  C.  C.  A.  319;  Freeman's 
Case,  233  Mass.  287,  (1919),  123  N.  E.  845,  4  W.  C.  L.  J.  499;  Kenney  v. 
City  of  Boston,  222  Mass.  401,  111  N.  E.  47;  Miller  v.  River  Side  Storage 
and  Cartage  Co.,  189  Mich.  360,  155  N.  W.  462. 

79.  Rhyner  v.   Hueber  Bldg.  Co.,    171  Anp.  Div.  56,  156  N.   Y.  S.  903; 
Walz  v.  Holbrook   Cabot  &  Rollins   Corp.,  170  N.  Y.  App.  Div.  6,  155  N. 
Y.  S.  703. 

80.  In  re   McMahon,   229  Mags.   48,  118  N.   E.  189.   16  N.  C.   C.  A.  185; 
Mulraney  v.  Brooklyn  Rapid  Transit  Co.,  190  N.  Y.  App.  Div.  774,  180 
N.  Y.  S.  654,  5  W.  C.  L.  J.  731;  Dazy  v.  Apponaug  Co..  36  R.  I.  81,  4 
N.  C.  C.  A.   694,  89  All.   160;   MacDonald  v.  Employer's  Assur.   Liab. 
Corp.,  —  Me.  —  (1921),  112  Atl.  719.    But  see  State  ex  rel.  Fleckenstein 
Brg.  Co.  v.  District  Court  of  Rice  Co.,  134  Minn.  324,  159  N.  W.   755,  1C 
N.  C.  C.  A.  185.   See  1921  Am.  Me.  Act  (§  I  fvlil]). 

81.  Powers  v.  Hotel  Bond  Co.,  89  Conn.  M3,  93  Atl.  245. 

931 


§  371  WORKMEN'S  COMPENSATION  LAW 

others  to  be  found,  and  might  be  applied  in  all  cases  where  claim 
is  based  on  partial  dependency;  for,  if  the  claimant  has  suffered 
no  financial  deprivation,  then  certainly  he  was  not  dependent. 
However,  the  contrary  view  has  been  taken  in  the  case  of  a  father 
who  claimed  compensation  upon  the  death  of  his  son,  whom  he 
supported:  the  court  holding  that  it  was  not  required  to  strike 
a  balance  between  the  son's  earnings  and  the  cost  of  his  main- 
tenance, with  a  view  to  ascertaining  whether  his  death  was  a 
financial  injury  to  the  father.82 

In  any  view,  the  fact  that  the  claimant  can  manage  to  exist 
without  the  contributions  formerly  received  from  the  deceased, 
is  in  no  sense  decisive  of  the  question  of  his  dependency.  Accord- 
ingly, a  case  of  partial  dependency  was  found,  although  the  de- 
ceased was  fatally  injured  before  his  first  pay  day.83 

A  mother  who  receives  contributions  from  a  son  for  use  in 
her  support,  is  partially  dependent  upon  the  son  for  support  even 
though  she*  is  living  with  her  husband,  if  the  husband  is  not 
sufficiently  providing  for  her  support.  And  a  finding  of  partial 
dependency,  whatever  its  degree,  entitles  the  dependent  in  Illinois 
to  at  least  the  minimum  award  provided  in  the  act.84 

Under  the  Kentucky  Act  a  father  partially  dependent  upon  his 
son  is  entitled  to  his  proportionate  share  of  the  death  benefit,  even 
though  the  deceased  son  left  a  totally  dependent  widow.85 

Evidence  that  a  son's  contribution  of  $8  per  week  when  working 
enabled  the  mother  to  run  her  house  more  easily  than  after  she 
was  deprived  of  her  son's  support,  was  held  sufficient  to  constitute 
the  mother  a  partial  dependent,  though  her  husband  was  alive 
and  not  incapacitated.86 

82.  Mahorey  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025. 

83.  Freeman's  Case,  233  Mass.  287,  (1919),  123  N.  E.  845,  4  W.  C.  L.  J. 
499;  McMahon's  Case,  229  Mass.  48,  118  N.  E.  189,  1  W.  C.  L.  J.  387. 

84.  Keller  v.  Indus.  Comm.,  291  111.  314,  (1920),  126  N.  E.  162,  5  W.   C. 
L.  J.  665;     Rock  Island   Bridge  &  Iron  Works  v.  Indus.  Comm.,  287  111. 
P48,  (1919),  122   N.  E.  830;  4  W.  C.   L.  J.  33;  Krauss   v.  Geo.  H.  Fritz  & 
Son,  87  N.  J.  L.  321,  93  Atl.  578,  13  N.  C.  C.  A.  319. 

85.  Penn   v.  Penn.,   183  Ky.   228,  (1919),  209   S.  W.  53,  3  W.   C.  L.  J. 
634. 

86.  Grant  v.  Kotwall,  —  Md.  — ,  (1919),  105  Atl.  758,  3  W.  C.  L.  J.  735. 
932 


DEPENDENCY.  §   371 

Where  the  deceased  contributed  weekly  to  the  support  of  his 
mother  and  half-brothers  and  half-sisters,  a  finding  that  they  were 
partially  dependent  upon  him  was  justified  by  the  evidence."1 

In  a  Kansas  case  the  court  said:  "The  question  whether  or  not 
the  plaintiffs  were  partially  dependent  on  the  earning  of  their 
son  was  a  question  of  fact,  and  finding  of  the  fact  of  partial 
dependency  is  conclusive  on  appeal  if  there  be  any  evidence  to 
support  it.  The  statute  is  a  blind  guide  to  the  determination 
of  the  question  of  fact.  Dependents  are  said  to  be  members  of 
the  workman's  family  who  were  dependent  on  him.  The  definition 
includes  the  term  to  be  defined.  Earnings  of  the  workman  come 
in  as  a  factor  of  dependency  in  the  provision  relating  to  the 
amount  of  compensation  to  those  who  were  wholly  dependent. 
Injury  comes  in  the  provision  relating  to  the  amount  of  com- 
pensation to  partial  dependents.  But  there  is  no  definite  standard 
of  dependency,  either  total  or  partial.  Perhaps  the  legislature  used 
the  word  'dependent'  in  the  dictionary  sense  of  relying  on  the 
workman's  earnings  for  support.  Support  for  what?  The  bare  neces- 
sities of  life,  without  which  existence  would  be  impossible,  or  sup- 
port according  to  some  standard?  If  according  to  some  standard, 
what  standard?  One  to  which  the  dependent  was  accustomed  or 
one  which  the  court  might  think  reasonable  under  all  the  circum- 
stances? *  *  *  Accepting  the  statute  just  as  it  came  from  the 
legislature,  the  court  is  of  the  opinion  that  the  question  before  the 
district  court  was  not  one  of  how  the  domestic  economics  of  the 
Fennimore  family  might  have  been  arranged,  or  ought  to  have 
been  arranged,  but  how  they  were  arranged ;  and  if  the  father  and 
mother  did  in  fact  depend  in  part  upon  the  son's  earnings,  so  that 
they  suffered  injury  by  being  deprived  of  what  they  had  relied  up- 
on they  were  entitled  to  recover.  This  being  true,  the  finding  of  par- 
tial dependency  is  abundantly  sustained."88 

Under  the  Indiana  Act  a  mother  who  received  Contributions 
from  a  minor  son  together  with  contributions  from  her  former  hns- 

87.  Bylow  v.  St.  Regis  Paper  Co.,  179  N.  Y.  App.  Div.  655,  166  N.  Y. 
S.    874,  16  N.  C.  C.  A.  152. 

88.  Fenimore  v.  Pitteburg-Scammon   Coal  Co.,  100  Kan.  372,  164  Pac. 
265,  16  N.  C.  C.  A.  176. 

933 


§  371  WORKMEN'S  COMPENSATION  LAW 

band  under  a  decree  of  divorce,  is  entitled  to  an  award  for  partial 
dependency  upon  the  death  of  her  minor  son.89 

Contemplated  improvements  on  the  father's  house  could  not  be 
considered  in  determining  the  amount  payable  to  him  as  a  partial 
dependent  of  his  son.90 

There  is  no  difference  between  the  amount  payable  to  parents, 
regardless  of  whether  they  are  considered  total  or  partial  depend- 
ents, when  the  son  turned  over  all  his  earnings  to  the  family  fund.91 
In  other  cases  of  partial  dependency  the  amount  of  compensation  is 
to  be  measured  by  the  actual  "average  amount  contributed  weekly" 
instead  of  the  technical  "Average  weekly  wage."92 

Where  the  deceased  son  turned  all  of  his  earnings  into  the  family 
fund  and  in  return  received  his  clothes  and  spending  money,  the 
court  held  that  the  parents  were  partial  dependents  as  they  reg- 
ularly derived  part  of  their  support  from  the  wages  of  the  deceased, 
and  this  despite  the  fact  that  the  father  was  earning  and  the 
family  were  saving  to  pay  off  a  mortgage  on  the  home.93 

An  unmarried  sister,  who  received  assistance  from  a  brother 
during  her  pregnancy  and  after  child  birth  until  the  brother  was 
killed,  was,  in  view  of  the  fact  that  she  would  in  all  probability, 
need  assistance  in  the  future,  entitled  to  compensation  as  a  partial 
dependent,  even  though  she  was  capable  of  partially  providing 
for  her  needs.94 

An  agreement  between  the  deceased  and  a  sister  that  she  stay 
home  and  care  for  the  family  and  that  he  would  support  her,  is 
sufficient  to  constitute  a  basis  for  a  finding  of  dependency ;  but 

89.  Bloomington-Bedford  Stone  Co.  v.  Phillips,  64  Ind.  App.  — ,  116  N. 
E.  850,  16  N.  C.  C.  A.  180. 

90.  In  re  McMahon,  229  Mass.  48,  118  N.  E.  189,  16  N.  C.  C.  A.  185. 

91.  In  re  Peters,  64  Ind.  App.  — ,  116  N.  E.  848;  Bloomington  Bedford 
Stone  Co.  v.  Phillips,  64  Ind.  App.  — ,  116  N.  E.  850,  16  N.  C.  C.  A.  385. 

92.  Indian   Creek   Coal   and   Mining   Co.  v.   Kutter,  —  Ind.   App.   — , 
(1921),  131  N.  E.  413. 

93.  State  ex  rel.  Ernest  Fleckenstein  Brewing  Co.  v.  District  Court  of 
Rice  County,  134  Minn.  324,  159  N.  W.  755,  16  N.  C.  C.  A.  185. 

94.  Jackson  v.   Indus.  Comm.  of  Wis.,   164  Wis.  94,  159  N.  W.  561,  13 
N.  C.  C.  A.  458. 

934 


DEPENDENCY.  §    371 

where  the  sister  had  other  sources  of  income  the  finding  must  be 
of  partial  dependency.95 

A  sister  who  was  earning  $10.00  per  week  as  a  stenographer  may 
be  found  to  be  partially  dependent  upon  her  deceased  brother, 
when  the  brother  had  been  actually  lending  assistance  U»  her,  for 
there  is  no  standard  as  to  just  when  a  person  can  be  said  not  to 
be  in  need  of  such  support,  in  order  that  she  could  live  in  accord- 
ance with  her  position  and  rank  in  life.06 

Where  a  statute  sets  a  minimum  for  partial  dependents  and  not 
for  total  dependents,  as  in  the  Minnesota  Act,  it  has  been  held  that 
the  same  construction  should  be  placed  on  both,  and  there  should 
be  no  minimum  amount  which  a  partial  dependent  should  receive. 
But  the  amendment  of  1915  to  the  statute  removed  this  difficulty.97 

Where  deceased  sent  $30.00  a  month  to  his  mother  for  the 
support  of  his  crippled  sister,  but  it  appeared  that  the  entire  sum 
was  not  expended  upon  the  sister,  an  award  of  partial  dependency 
was  sustained.98 

The  fact  that  a  parent  was  capable  of  self  support  does  not  pre- 
clude him  from  compensation  as  a  partial  dependent.99 

Under  the  Michigan  Act,  if  the  annual  earnings  of  an  employee 
do  not  exceed  $520.00,  compensation  should  be  awarded  at  the  rale 
of  $5  per  week  for  300  weeks,  in  case  of  death.1 

The  Minnesota  Act  provides  that  the  amount  paid  to  partial 
dependents  shall  be  "that  proportion  of  the  benefits  provided  for 
actual  dependents  which  the  average  amount  of  the  wages  regularly 
contributed  by  the  deceased  to  such  partial  dependent  at,  and  for 

95.  Kenney  v.  City  of  Boston,  222  Mass.  401,  111  N.  E.  47,  13  N.  C.  C. 
A.  461. 

96.  Miller  v.  Riverside  Storage  and  Cartage  Co.,  189  Mich.  360,  155  N. 
W.  462,  13  N.  C.   C.  A.  462. 

97.  State  ex  rel.  Globe  Indemnity  Co.  v.  District  Court  of  Ranuey  Co., 
132  Minn.  249,  156  N.  W.  120,  13  N.  C.  C.  A.  463. 

98.  Cheperton  v.  Oceanic  S.  N.  Co.,  (1913),  W.  C.  &  Ins.  Rep.  462,  6 
N.  C.  C.  A.  264. 

99.  Howells  v.  Vivian  &  Sons,  (1901),  50  W.  R.  163,  85  L.  T.  529,  18  T. 
L.  R.  36,  4  W.  C.  C.  106,  6  N.  C.  C.  A.  274. 

1.  De  Mann  v.  Hydraulic  Engineering  Co.,  192  Mich.  594,  195  N.  W. 
380. 

935 


§  371  WORKMEN'S  COMPENSATION  LAW 

a  reasonable  time  prior  to  the  injury,  bore  to  the  total  income 
of  the  dependent  during  the  same  time."2 

The  minimum  death  benefit  to  be  paid  to  partal  dependents  in 
Minnesota  is  $6.00  per  week.3 

Under  the  Washington  Act  a  dependent  mother  was  held  en- 
titled to  $20.00  per  month  as  long  as  the  dependency  lasted,  and 
the  provision  of  the  act  that  in  case  of  a  minor's  death  compensation 
should  continue  for  a  time  equal  to  the  time  when  the  minor  would 
have  become  of  age  applies  exclusively  to  cases  where  there  were 
no  dependents.4 

Under  the  "Wisconsin  Act,  in  case  of.  death  the  compensation 
cannot  be  decreased  because  the  employee  is  over  55  years  of  age, 
as  in  the  case  of  permanent  disability.5 

Under  the  Federal  Act,  which  fixes  compensation,  of  brothers 
and  sisters,  where  there  is  one  totally  dependent,  at  20  per  cent, 
if  more  than  one  30  per  cent,. share  and  share  alike,  and  where  there 
are  none  wholly  dependent  but  one  or  more  partially  dependent, 
10  per  cent  to  be  divided  share  and  share  alike,  it  wa^j  held  'Jiat 
where  there  were  several  persons  partially  dependent  that  the 
commission  might,  in  the  exercise  of  its  discretion,  allow  anywhere 
between  10  and  30  percent,  for  to  do  otherwise  would  not  afford 
any  appreciable  amount  to  any  one.6 

It  has  been  held  that  under  the  Connecticut  Act  "a  partially 
dependent  may  reeieve  any  fractional  part  of  the  weekly  compen- 
sation to  be  paid  the  wholly  dependent;  and  under  the  maximum 
and  minimum  provision  a  sum  in  excess  of  the  weekly  aid  received 
by  the  partially  dependent  from  the  employee  may  in  some  cir- 
cumstances be  awarded  such  dependent."7 

2.  State  ex  rel.  Hayden  v.  District  Court  of  St.  Louis  Co.,  133  Minn. 
454,  158  N.  W.  792. 

3.  State   v.  District   Court  of  Rice   County,  134   Minn.  324,    159  N.  W. 
755. 

4.  Boyd  v.  Pratt,  72  Wash.  306,,  130  Pac.  371.. 

5.  City  of  Milwaukee  v.  Ritzow,  158  Wis.  376,  149  N.  W.  480,  7  N.  C. 
C.  A.  498. 

6.  In  re  John  P.  Murphy,  3rd  A.  R.U.  S.  C.  C.  101. 

7.  Quilty  v.  Connecticut  Co.,  —  Conn.  -  -,  113  Atl.  149  (1921). 

936 


DEPENDENCY.  §   372 

§  372.  Total  Dependency. — Total  dependency  exists  where 
persons  coming  within  the  statutory  classification  of  "  who  may 
be  dependents"  subsist  entirely  upon  the  earnings  of  the  workman,8 
irrespective  of  the  fact  that  in  the  absence  of  the  assistance  such 
j  ersons  would  be  able  to  support  themselves 9  It  is  immaterial  that 
gratuitous  contributions  from,  persons  other  than  the  workmen  are* 
occasionally  received,10  that  they  hold  small  savings  accounts  of 
their  own,11  that  the  moneys  received  i'tom  the  workman  were 
other  than  his  earnings,12  or  were  paid  to  others  for  the  support 
of  the  one  claiming  dependency.18 

On  the  other  hand,  the  fact  that  a  claimant  has  a  substantial 
independent  fund  of  his  own,  may  reduce  his  dependency  from 
whole  to  partial.14 

Thus,  where  the  claimant  had  $600  in  bank,  and  one-third  in- 
terest in  unincumbered  productive  real  estate  in  Boston  that 
was  assessed  for  $1300,  her  claim  as  one  wholly  dependent  was 

8.  Marsh  v.  Boden,  (1905),  7  W.  C.  C.  110  C.  A. ;    Simms  v.  Lilleshall 
Colliery  Co.   Ltd.,   1917  W.   C.  &   Ins.  R.   218,  16    N.  C.  C.  A.  147;  In  re 
Yeople,  182  N.  Y.  App.  Div.  438,  169  N.  Y.  Supp.  584  Aff'd.  223  N.  Y.  — , 
16  N.  C.  C.  A.  149. 

9.  Belle  City  Malleable  Iron  Co.  v.  Rowland,  170  Wis.  293,  (1919),  174 
N.  W.  899,,  5  W.  C.  L.  J.  333;  Simms  v.  Lilleshall   Colliery    Co.    Ltd., 
(1917),  W.  C.  &  Ins.  Rep.  218,   16  N.  C.  C.  A.  147;  In  re  Herrick,   217 
Mass.  Ill,  104  N.  E.  433,  4  N.  C.  C.  A.  554;  Moyes  v.  Dixon  Ltd.,  (1950), 
7  F.  386. 

10.  Petrozino  v.  American  Mutual  Liab.  Co.,  219  Mass.  498,  107  N.  E. 
370,  9  N.  C.  C.  A.  594;  State  ex  rel.  Splady  v.  District  Court  of  Hennepin 
Co.,   128  Minn.  338,   151  N.  W.  123,  9  IT.  C.  C.  A.   580;     Kennerson   v. 
Thames  Towboat  Co.,  89  Conn.  367,  94  All.  372,  L.  R.  A.  1916A,  436. 

11.  In  re  Buckley  218  Mass.  354,  105  N.  E.  979,  5  N.  C.  C.  A.  613;    In 
re  Carter,  221  Mass.  105,  108  N.  E.  911,  9  N.  C.  C.  A.  579;  Morris  v.  Yough 
Coal  &  Supply  Co.,  266  Pa.  — ,  109  Atl.  914,  6  W.  C.  L.  J.  210  (1920). 

12.  State  ex  rel.  Crookston  Lbr.   Co.  v.  District  Ct.  Beltrami  Co.  131 
Minn.  27,  13  N.  C.  C.  A.  556,  154  N.  W.  609. 

13.  Walz   v.   Holbrook,   Cabot  &    Rollins   Corp.,  170  App.   Div.  6,  155 
Supp.  703;    O'Flynn's  Case,  (1919),  232  Mass.  582,  122  N.   E.  Rep.  767,  4 
\v    C.  L.  J.  105. 

14.  Dazy  v.  Apponaug  Co.,  36  R.  I.  81.  89  AU.  160,  4  N.  C.  C.  A.  694. 

937 


§  372  WORKMEN'S  COMPENSATION  LAW 

disallowed,  and  she  was  allowed  compensation  on  the  basis  of 
partial  dependency  only.15 

Where  the  statute  fixes  the  time  for  determining  dependency 
as  antecedent  to  the  employee's  death;  that  is,  at  the  time  of  the 
injury,  money  or  property  coming  to  the  claimant  out  of  the 
deceased's  estate  cannot  be  considered  in  determining  whether 
claimant  was  wholly  or  only  partially  dependent  upon  such  em- 
ployee.10 

A  wife  living  with  a  husband  at  and  prior  to  the  time  of  t'he 
injury  is  conclusively  presumed  to  be  totally  dependent  upon  him, 
despite  the  fact  that  she  had  a  separate  income  of  her  own.17 

A  claim  of  total  dependency  by  a  wife  in  Italy  upon  a  husband 
in  the  United-  States  cannot  be  sustained,  where  the  evidence  shows 
that  the  husband  owned  the  house,  the  widow  and  family  were 
living  in,  in  Italy,  without  a  further  showing  that  the  house  was 
of  no  value.18 

A  grown  daughter  keeping  house  for  her  father  and  receiving 
her  entire  support  from  him,  is  totally  dependent  on  the  father, 
even  though  she  is  capable  of  earning  her  own  living.  The  court 
said:  "Under  the  Workmen's  Compensation  Act,  1906,  it, is  clear 
that  dependency  has  to  be  ascertained  at  the  time  of  the  death ;  and 
if  the  dependency  is  total,  the  learned  judge  as  arbitrator  has  no 
discretion  as  to  the  amount  of  compensation  to  be  awarded,  but 
it  is  the  amount  of  the  workman's  earnings  during  3  years.  If 
the  dependency  is  partial,  the  whole  thing  is  at  large,  and  the 
arbitrator  has  to  take  all  the  circumstances  into  consideration  and 
then  say  what  was  the  proper  amount  of  compensation.  He  is 
not  tied  down  except  that  he  cannot  give  more  than  a  certain  sum. 
He  is  not  bound  to  give  any  particular  sum.  Here  the  learned 

15.  Kenney  v.  City  of  Boston,  222  Mass.  401,  111  N.  E.  47. 

16.  Kenney  v.   City  of   Boston,  222   Mass.  401,  111   N.  E.  47;  Pryce  v. 
Penrikyber  Nav.  Col.  Co.,  85  L.  T.  477,  4  W.  C.  C.   115,  (1902),  1  K.  B.  221, 
71  L.  J.  K.  B.  192,  50  W.  R.  197,  66  J.  P.  198. 

17.  Belle    City  Malleable   Iron  Co.  v.    Rowland,   170  Wis.   293,  (1919), 
174  N.  W.  899,  5  W.  C.  L.  J.  333. 

18.  In  re  Derinza,  229  Mass.  435,  118  N.  E.  942,  1  W.  C.  L.  J.  795,  16 
N.  C.  C.  A.  210;  In  re  McDonald,  229  Mass.  454,  118  N.  E.  949,  1  W.  C. 
L.  J.  808,  16  N.  C.  C.  A.  87,  214. 

938 


DEPENDENCY.  §   372 

judge  has  taken  the  view  that  he  must  see  whether  this  applicant 
was  physically  incompetent  to  earn  wages,  in  order  to  ascertain 
whether  she  was  totally  dependent  on  her  father.  This  is  plainly 
wrong.  It  seems  to  me  that  the  learned  county  court  judge  had 
no  right  to  consider  anything  else  but  this:  Was  the  daughter 
in  fact  wholly  dependent  on  her  father's  earnings  at  the  time 
of  his  death,  or  had  she  any  other  source  of  income?"19 

An  award  for  total  dependency  of  a  mother  upon  the  countri- 
butions  of  her  deceased  son  was  sustained,  even  though  brothers 
and  sisters  of  the  deceased  were  looking  to  the  common  fund  to 
which  the  deceased  contributed  for  support;  the  court  saying: 
"For  the  purposes  of  this  proceeding  the  facts  show  appellee  to  be 
the  head  of  a  family  composed  of  herself  and  three  minor  children 
(the  deceased  being  19  years  of  age).  No  other  person  is  claiming 
compensation  from  appellant,  nor  is  any  other  person  shown  to 
bear  the  same  relation  to  the  deceased  as  appellee.  The  other 
minor  children  looking  to  their  mother  for  support  from  the 
common  fund,  of  which  she  was  the  custodian  and  disburser.  No 
legal  obligation  rested  on  the  deceased  to  support  his  minor  brother 
and  sister,  but  under  the  facts  found  appellee  was  legally  and 
morally  bound  to  support  her  minor  children.  Her  means  of 
so  doing  was  the  common  fund  placed  in  her  hands,  to  which  the 
deceased  son  contributed  all  his  earnings.  On  the  facts  found 
there  is  no  merit  in  the  contention  that  appellee  is  not  the  proper 
person  to  maintain  this  proceeding  and  receive  the  compensation 
legally  due  from  appellant."20 

"Where  a  mother  received  contributions  from  a  minor  son  as 
well  as  partial  support  from  her  divorced  husband,  the  court,  in 
holding  that  she  was  a  total  dependant,  said:  "Total  dependency 
exists  where  the  dependent  subsists  entirely  on  the  earnings  of 
the  workman;  but  in  applying  this  rule  courts  have  not  deprived 
claimants  of  the  rights  of  total  dependents,  when  otherwise  en- 

19.  Simms  v.  Lilleshall  Colliery  Co.  Ltd.,  (1917),  W.  C.  ft  Ins.  Rep. 
218,  16  N.  C.  C.  A.  147. 

20.  People's  Hardware  Co.  v.  Croke,   64  Ind.  App.  — ,  118  N.  E.  314, 
1918,  16  N.  C.  C.  A.  179. 


989 


§  372  WORKMEN'S  COMPENSATION  LAW 

titled  thereto,  on  account  of  temporary  gratuitous  services  render- 
ed them  by  others,  or  on  account  of  occasional  financial  assistance 
received  from  other  sources,  or  on  account  of  other  minor  consider- 
ations and  benefits  which  do  not  substantially  modify  or  change  the 
general  rule  as  above  stated.  *  *  *  Applying  this  rule  to  the  case 
at  bar  we  cannot  say  that  appellee  was  totally  dependent  on  her 
deceased  son,  within  the  meaning  of  the  workmen's  compensation 
act,  but  on  the  facts  found  by  the  board  we  hold  as  a  matter  of 
law  that  she  was  partially  dependent  on  him  for  support."21 

"A  widowed  mother  without  means  who  is  supported  by  her  son, 
partly  by  the  wages  of  his  employment  and  partly  by  the  yield 
of  his  land  is  wholly  dependent  upon  her  son  for  support,  within 
the  meaning  of  the  Minnesota  Compensation  Act.  To  constitute 
total  dependency,  within  the  meaning  of  the  act  it  is  not  necessary 
that  the  dependent  be  supported  wholly  out  of  the  wages  of  the 
employee's  employment."22 

Where  the  putative  father  of  an  illegitimate  unborn  child  made 
public  his  intentions  to  marry  the  pregnant  mother  of  the  child, 
but  was  killed  four  days  prior  to  the  consummation  of  his  inten- 
tions it  was  held  under  the  British  Act  that  an  award  for  partial 
dependency  was  erroneous,  and  an  award  of  total  dependency 
was  ordered.23 

Where  invalid  parents  were  totally  dependent  upon  their  de- 
ceased son  for  support,  the  mere  fact  that  a  daughter,  who  had 
been  paid  for  keeping  house  for  them  had,  prior  to  the  son 's  death, 
ceased  to  exact  compensation  for  her  services,  would  not  be  sufficient 
to  render  them  only  partially  dependent.24 

21.  Bloomington-Bedford  Stone  Co.  v.  Phillips,    64  Ind.  App.   — ,116 
N.  E.  850,  16  N.  C.  C.  A.  181. 

22.  State   ex  rel.    Crookston   Lbr.  Co.  v.  District   Court  of   Beltramia 
Co.,  131  Minn.  27,  13  N.  C.  C.  A.  555,  154  N.  W.  509. 

23.  Harris  v.  Powell  Duffryn  Steam  Coal  Co.,  Ltd.,  9  B.  W.  C.  C.  93, 
13  N.  C.  C.  A.  274. 

24.  State  ex  rel.  Splady  v.  District  Court  of  Hennepin  County,  128 
Minn.  338,  151  N.  W.  123,  9  N.  C.  C.  A.  580. 


940 


DEPENDENCY.  §   373 

Mere  gratuitous  remittances  by  an  aunt  and  a  sister  are  not 
sufficient  to  prevent  an  award  for  total  dependency  of  a  mother 
and  sister,  otherwise  wholly  dependent  upon  the  deceased.26 

A  finding  of  total  dependency  of  an  invalid  sister  who  was 
supported  by  deceased  was  sustained,  although  the  evidence  show- 
ed that  she  had  a  life  interest  in  the  land  and  house  occupied 
by  her  deceased  sister  and  that  the  property  was  worth  about 
$2000.00,  although  there  was  no  evidence  pertaining  to  encum- 
brances or  to  the  cost  of  upkeep  and,  as  a  matter  of  law,  such  find- 
ing was  held  not  to  be  erroneous.28 

Under  the  Massachusetts  Act,  as  amended,  a  dependent  mother 
of  a  deceased  fireman,  killed  in  the  employment  of  the  city,  was 
denied  compensation  on  the  ground  that  he  was  a  public  official 
and  not  a  "workman,  laborer  or  mechanic,"  within  the  meaning 
of  the  act.27 

§  373.  Dependency  of  Parents,  Grand  Parents,  and  Other 
Near  Relatives  of  Deceased  Workmen. — Dependency  of  other 
persons  enumerated  in  the  statute  as  dependents,  but  not  conclusive- 
ly presumed  to  be  dependents,  must  be  determined  upon  the  par- 
ticular facts  as  they  existed  at  the  time  of  the  accident  or  death 
(as  the  statute  may  provide).  The  following  cases  illustrate  the 
different  conditions  under  which  such  persons  may  be  deemed  to 
be  dependents  under  the  various  acts. 

An  award  to  each  of  the  parents  of  the  deceased  cannot  be- 
sustained  under  the  New  York  Act,  and  the  award  to  the  mother 
should  'be  stricken  out,  for  the  award  to  parents  cannot  exceed 
25  percent  of  the  deceased's  wages.28  Where  an  award  is  made 

25.  Petrozino  v.  American  Mutual   T.iab.  Co.,    219  Mass.  498,    107   N. 
E.  370,  9  N.  C.  C.  A.  594. 

26.  In   re  Buckley,   218  Mass.  354,  5  N.  C.  C.  A.   613,   105  N.  E.  979. 

27.  Devney  v.  City  of  Boston,  223  Mass.  270,  111  N.  E.  788. 

28.  Intinl  et  ux.  v.  Stittvllle  Canning  Co.,   181  N.  Y.  S.  890,   191  App. 
Div.  933,  6  W.  C.  L.  J.  83;   Skarpeletzo  v.  Counes  *  Rapt  is  Corp.  228 
N.  Y.  46,  (1920),  126   N.  E.  268,  5    W.  C.  L.  J.  720. 

941 


§  373  WORKMEN'S  COMPENSATION  LAW 

to  both  parents  under  the  Massachusetts  Act,  the  relative  extent 
of  their  dependency  must  be  found,  as  an  award  made  to  them 
jointly  is  improper.29 

Evidence  that  about  three  years  before  the  accident  the  deceased, 
an  employee,  32  years  of  age,  sent  $45.00  of  his  wages  to  his  father 
84  years  old,  residing  in  Italy,  and  that  about  a  year  before  the 
accident,  the  deceased  sent  $44,  raises  no  legal  presumption  that 
payment  was  made  to  assist  in  the  father's  support  or  to  establish 
dependency  under  a  section  of  the  Illinois  statute  providing:  "If 
no  amount  is  payable  under  paragraph  (a)  of  this  section  and  the 
employee  leaves  any  widow,  child,  parent,  grandparent  or  other 
lineal  heir,  to  whose  support  he  had  contributed  within  four  years 
previous  to  the  time  of  his  injury,  a  sum  equal  to  four  times  the 
average  annual  earnings  of  the  employee'  shall  be  paid  for  an  in- 
jury to  the  employee  resulting  in  death.  The  court  said:  "The 
act  as  thus  worded  was  in  force  at  the  time  of  Macro's  death.  It 
does  not  require  that  the  surviving  parent  shall  be  dependent 
upon  the  deceased  but  it  is  sufficient  if  the  deceased  em- 
ployee leaves  a  parent  to  whose  support  he  has  contributed 
within  four  years  immediately  prior  to  the  injury.  Commonwealth 
Edson  Co.  v.  Industrial  Board,  277  111.  74,  115  N.  E.  158.  lit 
Bromwell  v.  Estate  of  Bromwell,  139  111.  424,  426,  28  N.  E.  1057, 
it  was  stated:  '"Where  one  pays  money  to  another  and  there  is 
no  explanation  of  the  cause  of  such  payment,  the  ordinary  pre- 
sumption is  that  the  money  was  paid  because  it  was  due  and  owing, 
and  not  by  way  of  a  loan.  *  *  *  This  is  undoubtedly  the  rule  where 
only  business  relations  exist  between  the  parties.  But  whe're  other 
relations  exist,  there  may  doubtless  be  ground  for  presumptions 
of  a  different  character.  Thus,  where  a  husband  hands  money  to 
his  wife,  or  a  father  to  a  child  still  dependent  upon  him,  the  pre- 
sumption naturally  arising  is  that  the  act  is  in  performance  of 
legal  obligation  resting  upon  husband  or  father  to  maintain  or 
support  the  wife  or  child.'  The  presumption  as  to  payment  of 
money,  as  shown  by  the  above  decision  is  one  of  fact  rather  than 

29.    In  re  Pagnoni,  —  Mass.  — ,  118  N.  E.  948;  1  W.  C.  L.  J.  806. 
942 


DEPENDENCY.  §   373 

one  of  law — a  mere  rule  of  evidence — an  inference  to  be  drawn 
from  the  facts  and  circumstances  of  the  particular  case.  We  do 
not  think  that  any  legal  presumption  can  be  drawn  from  the  fact 
of  the  payment  to  the  father,  84  years  old,  by  his  son,  32  years 
old,  that  this  payment  was  made  to  assist  in  the  father's  support 
rather  then  pay  an  ordinary  debt  for  service  rendered  or  for  money 
loaned."80 

The  fact  that  a  mother  had  made  a  will  in  favor  of  her  de- 
ceased son,  who  had  contributed  to  her  support,  was  not  material 
in  determining  her  claim  to  the  benefit  provided  by  the  Work- 
man's Compensation  Act,  where  there  was  no  evidence  that  the 
will  was  the  result  of  an  agreement  to  give  him  all  her  property 
or  of  any  agreement.81 

The  minority  of  an  employee  in  no  way  affects  the  question 
of  the  dependency  of  a  parent  on  his  earnings.81 

When  a  minor  gives  his  wages  to  his  father  for  the  aid  of  him 
and  his  children,  the  father  is  thereby  constituted  an  "actual 
dependent"  within  the  meaning  of  the  New  Jersey  Act.88 

The  mere  fact  that  a  parent  or  grandparent  receives  money 
or  gifts  from  a  child  and  expends  it,  is  not  alone  sufficient  to  es- 
tablish dependency. ' '** 

30.  Peabody  Coal    Co.  v.    Indus.  Comm.   289    111.  330,   124  N.  E.  566, 
5  W.  C.  L.  J.  27;   In  re  Otto  G.  Jorgensen,  2  A.  R.  U.  S.  C.  C.  75;   In 
re  Horace  A.  Pelletier  ,  2  A.  R.  U.  S.  C.  C.  76. 

31.  Mississippi  River  Power  Co.  v.  Indus.  Comm.,  289  111.  353,  (1919), 
124  N.  E.  552,  5  W.  C.  L.  J.  50. 

32.  Friscia   v.  Drake  Bros.  Co.,    167    App.  Div.  496,  153  N.  Y.  Supp. 
392. 

33.  Colucci  v.  Edison  Portland  Cement  Co.,  93  N.  J.  L.  332,  108  All. 
313,  5  W.   C.    L.    J.    302;    Turner  v.    Miller  and  Richards,  3  B.    W. 
C.  C.  305,  6  N.  C.  C.  A.  242. 

34.  Birmingham  v.  Westlnghouse   Electric  &  Mfg.  Co.,  180  App.  Div. 
48,  167  N.  Y.  S.  520;  Mulraney  v.  Brooklyn  Rapid  Transit  Co.,  180  N. 
Y.  S.  654,  190  App.  Div.  774,    5  W.   C.  L.  J.  731;    Main    Colliery  Co.  v. 
Davies,   (1900)  A.  C.  358,  69  L.  J.  Q.  B.  755;    Atwood  v.  Conn.  Light  A 
Power  Co.,  —  Conn. — ,  (1921),  112  Atl.  269,  Kelley  v.  Hoefler  Ice  Cream 
Co.,  —  App.  Div.  — ,   (1921),  188  N.  Y.  S.  584. 

943 


§  373  WORKMEN'S  COMPENSATION  LAW 

A  father  contributing  $12.00  a  week  to  a  family  maintenance 
fund  is  not  dependent  upon  a  son  who  contributed  a  like  sum.35 

A  duty  rests  upon  a  minor  to  turn  over  his  wages  to  his  parents, 
and  a  correlative  right  to  receive  such  wages  rests  in  the  parent. 
Therefore  a  promise  by  a  son  to  send  money  to  his  mother  for  her 
support  sufficiently  constitutes  dependency,  even  though  he 
never  had  a  pay  day  before  his  death  affording  him  an  opportuni- 
ty to  consummate  his  purpose.  Although  under  ordinary  cir- 
cumstances "a,  simple  expression  of  purpose  to  contribute  to  sup- 
port, unaccompanied  by  any  actual  contribution  after  reasonable 
opportunity,  would  not  constitute  dependency."38 

Actual  support  of  parents  of  the  deceased  within  a  year  prior 
to  death  of  the  son  is  necessary  to  establish  their  dependency  un- 
der the  New  York  Act.37 

"Where  a  son  has  contributed  to  the  support  of  his  parents  with- 
in four  years  prior  to  the  time  of  his  injury,  the  parents  are  en- 
titled to  compensation  under  the  Illinois  Act,  independent  of  the 
fact  that  they  were  not  dependent  upon  him.38 

And  the  contributions  of  the  minor  need  not  exceed  his  own 
expenses,  expended  for  him  by  his  parents,  since  the  parents  are 
under  a  legal  obligation  to  support  him.39 

35.  Klein   v.    Brooklyn   Heights    R.    Co.,    177   N.   Y.    S.    67,    188   App. 
Div.  509,  4  W.  C.  L.  J.  432;   Henry  Pratt  Co.  v.  Indus.  Comm.,  —  111.  — , 
(1920),  127  N.  E.  754,  6  W.  C.  L.  J.  296. 

36.  Freeman's   Case,   233   Mass.    287,   123   N.    E.     845,   4   W.  C.  L.  J. 
498;  Alden  Coal  Co.  v.  Indus.  Comm.,  —  111.  —  (1920),  127  N.   E.    641, 
6  W.  C.  L.  J.  274;    Parson  v.  Murphy,  —  Neb-  — ,  163  N.  W.  847,  B.  I. 
W.  C.  L.  J.  1100. 

37.  Profeta  v.  Retsof  Mining  Co.,  177  N.  Y.  S.  60,  188  App.  Div.  383, 
4  W.  C.   L.  J.  444. 

38.  Humphrey  v.  Indus.    Commission  of  111.,  285    111.,    372,  120  N.  E. 
816,  3  W.  C.L.  J.102;    Mailers  v.    Indus.  Bd.    of  111.,  281   111.  418,   117 
N.  E.  1056,   1   W.  C.  L.  J.   522,  16  N.  C.  C.  A.  175;   Commonwealth  Edi- 
son Co.  v.  Indus.   Bd.,  277   111.  74,  115  N.  E.  158;   Rockford  Cabinet  Co. 
v.  Indus.  Comm.,  —  111.  — ,  (1920),  129   N.  E.  142,  7  W.  C.  L.  J.  280. 

39.  Metal   Stampings    Corp.   v.    Indus.    Comm.,     258   111.    528,    121   N. 
E.  258,  3  W.  C.  L.  J.  258;  In  re  Peters,   64  Ind.  App.  — ,  116  N.  E.   848, 
16  N.   C.  C.  A.  183;   Richardson    Land  Co.  v.  Indus.  Comm.,  —  111.    — , 
(1921),  129  N.  E.  751. 

944 


DEPENDENCY.  §    373 

Where  a  father  is  partially  dependent  upon  a  deceased  son, 
he  is  entitled  under  the  Kentucky  Act,  to  his  proportionate  share 
of  an  award,  even  though  the  deceased  left  a  totally  dependent 
widow.40 

Where  there  is  no  evidence  that  the  moneys  contributed  to 
the  family  were  in  excess  of  the  amount  required  for  deceased's 
board  and  expenses,  the  parents  have  not  established  their  de- 
pendency under  the  Kansas  Act.41 

Where  a  father  earns  sufficient  to  support  his  family  after 
proper  deductions  are  made  for  the  contribution  of  a  son,  the 
father  or  family  are  not  dependent  upon  the  son,  for  the  princi- 
ple of  the  act  is  compensation,  and  the  question  of  dependency  is 
one  to  be  determined  in  each  case.42 

A  mother  may  maintain  proceedings  for  the  death  of  a  son  who 
contributed  all  his  earnings  to  her,  as  head  of  the  family,  even 
though  other  children  were  also  supported  from  the  same  fund.4* 

The  Kansas  Supreme  Court  in  holding  that  parents  are  not  de- 
pendent upon  a  child  not  legally  adopted,  said:  "While  the  ex- 
pression 'lepral  adoption'  has  become  common,  it  is  really  tauto- 
logical. The  full  meaning  would  be  expressed  by  the  single  word 

40.  Penn  et.  al.  v.  Penn.,  183  Ky.  228,  209  S.  W.  53,  3  W.  C.  L.  J.  634; 
Robinson  v.  Anon,   (1904),  6  W.  C.  C.  117. 

41.  McGarvie  v.  Frontenac  Coal  Co.,   103  Kan.  586,  175  Pac.  375,  3 
W.  C.  L.  J.  46;  Jedreiiiich  v.  James   Shewan  &  Sons,  183  N.  Y.  S.  Ill, 
(1920),  6  W.  C.  L.  J.  480;  Federal  Mut.  Liability  Ins.  Co.  v.  Indus.  Comm., 
—  Cal.  — ,  199  Pac.  796,  (1921). 

42.  Moll   v.   City   Bakery,   199   Mich.   670.   165   N.   W.    649,    1   W.   C. 
L.   J.   391,  16  N.  C.  C.   A.   186;    Foskett  v.  A.   J.   Buschmann  Co.,  183 
N.  Y.  S.  919,  (1920),  6  W.  C.  L.  J.  562;    Schedrick   v.  Volney   Paper  Co., 
184  N.  Y.  S.  424,  (1920),  7  W.  C.  L.  J.  103;  Reidnick  v.  White  Bros.,  - 
Del.  — ,  109  Atl.   881,  6  W.  C.  L.  J.  138. 

43.  Peoples  Hardware  Co.  v.   Croke,  64   Ind.  App.  — ,  118  N.  E.  314, 
1   W.  C.L.  J.  579,  16  N.    C.  C.    A.  186;    McLean  v.  Moss  Bay  Iron  & 
Steel  Co.,  (1910),  2  B.  W.  C.  C.  282,  C.  A.  313,  W.  C.  C.  402;  Hodgson 
v.  Owners  of  West  Stanley,  Colliery  A.  C.  (H.  L.)  229.    3  B.  W.  C.  C. 
260;  Ford  v.  Oakdale  Colliery  Co.,  (1915),  8  B.  W.  C.  C.  127;  Kennerson 
v.   Thames  Towboat   Co.,  89   Conn.  367,  94  Atl.  372.  L.H.A.    1916 A,  436; 
Halbeisen  v.  H.  Koppers  Co.,  N.  J.  (1920),  113  Atl.  921. 

945 
W.  C.— 60 


§  373  WORKMEN'S  COMPENSATION  LAW 

'adoption'  because  taking  a  child  into  a  family  and  treating  it 
as  a  natural  offspring  is  not  adoption.  If,  however,  some  legis- 
lative purpose  must  be  found  for  qualifying  the  word  'adoption' 
by  the  word  'legal,'  it  must  have  been  to  exclude  all  grafting  of 
children  upon  another  family  stock  otherwise  than  by  adoption 
proceedings  conforming  to  the  law  governing  the  subject."4* 

An  invalid  father,  who  is  supported  by  his  minor  son  through 
his  earnings,  savings  and  borrowed  money,  is  dependent  upon  the 
son,  and  the  question  as  to  whether  the  son's  earnings  exceeded 
the  cost  of  his  maintenance  is  immaterial.45 

Under  the  New  Jersey  Act  a  father  is  entitled  to  25  per  cent 
of  the  average  weekly  earnings  of  his  son,  upon  whom  he  was 
actually  dependent,  despite  the  fact  that  there  were  brothers  and 
sisters  of  deceased,  for  they  were  not  legally  dependent  upon 
him  merely  because  their  father  was  assisted  in  supporting  them, 
and  the  fact  that  the  son  leaves  a  widow  does  not  preclude  the 
father  from  his  proportionate  share.46 

But  a  later  case  holds  that,  where  a  sister  had  been  supported 
out  of  wages  of  a  deceased  brother  given  to  the  family  fund,  she 
is  an  actual  dependent,  irrespective  of  the  fact  that  the  father 
was  legally  obligated  to  support  her.47 

In  considering  the  question  whether  or  not  the  contributions 
of  a  son  were  part  of  the  mother's  income,  the  court  said:  "The 
argument  of  relator  that  the  son's  contributions  were  voluntary, 

44.  Ellis  v.  Nevins  Coal  Co.,  100  Kan.  187,  163  Pac.  654,   16  N.C.C.A. 
178. 

45.  Mahoney   v.  Gamble-Desmond   Co.,    90  Conn.  255,   96  Atl.  1025,   13 
N.  C.  C.   A.   315;    In  re  Murphy,  218  Mass.  278,    105  N.  E.  635,  5  N.  C. 
C.  A.  716;   Stevenson  v.  Illinois    Watch    Case    Co.,    186  111.  App.  418,  5 
N.  C.  C.  A.  858. 

46.  Havey  v.  Erie  Ry.   Co.,   88  N.  J.  L.  684,  96  Atl.  995,  13  N.  C.  C. 
A.  319;  Rev'g.  87  N.  J.  L.  444;  Blanz  v.  Erie  R.  Co.  87  N.  J.  L.  367,  85 
Alt.  1030,  3  N.  C.  C.  A.   590;  McFarland  v.  Cent.  Ry.  Co.,  84  N.   J.  L. 
435,  87  Atl.  144,  4  W.  C.  L.  J.  592;  Tischman  v.  Central  R.  Co.,  84  N.  J. 
L.  527,  87  Atl.   144,  4  N.  C.  C.  A.  736;   Quinlan  v.  Barber  Asphalt  Pav- 
ing Co.,  84  N.  J.  L.  510,  87  Atl.   127,  11  N.  C     C.  A.  715. 

47.  Connors  v.  Public  Service  Elect.  Co.,  89  N.  J.  L.  99,  97  Atl.  792, 
13  N.  C.  C.  A.  321;  Driscoll  v.  Jewell  Belting  Co.,  —  Conn.  — ,  114  Atl. 
109,  (1921\ 

946 


DEPENDENCY.  §   373 

in  the  nature  of  gifts  to  his  mother,  is  not  entirely  sound,  as  we 
should  not  lose  sight  of  the  probability  that  she  had  earned  these 
contributions,  and  that  the  son  was  doing  no  more  than  his  duty. 
But  treating  the  payments  as  voluntary,  even  as  gifts,  the  letter 
as  well  as  the  spirit  of  the  compensation  law  compels  the  con- 
clusion that  the  legislature  intended  that  such  contributions 
should  be  considered  as  forming  a  part  of  the  income  of  the  par- 
tial dependent.  The  cases  relied  on  by  relator  are  not  compensa- 
tion cases,  and  have  little  application.  The  question  is  not  wheth- 
er the  presents  which  a  man  receives  are  a  part  of  his  'Income,' 
speaking  in  a  general  sense,  but  what  was  the  legislative  intent 
as  to  whether  regular  contributions  by  a  workman  to  his  mother 
should  be  considered  as  a  part  of  her  income  in  determining  the 
amount  of  her  compensation  as  a  partial  dependent.  In  subdivi- 
sion 17  of  section  14  the  'income  loss*  of  a  partial  dependent  from 
the  death  is  made  the  amount  to  be  received  in  case  it  is  less  than 
the  minimum  of  $6.50  per  week.  Clearly  here  the  contributions 
of  the  workman  are  treated  as  'income.'  If  such  contributions 
are  not  income,  there  is  no  income  loss.  Again,  the  law  clearly 
shows  an  intent  that  actual  dependents  shall  receive  more  com- 
pensation than  partial  dependents.  In  this  case,  if  relator 's  con- 
tention is  sustained,  she  would  be  entitled  to  greater  compensa- 
tion than  if  she  were  an  actual  dependent."48 

A  mother  may  be  dependent  upon  an  illegitimate  son  who  lived 
with  her  and  her  husband  and  turned  over  his  wages  to  his 
mother  for  her  use,  if  it  was  reasonably  necessary  that  she  use 
the  moneys  for  her  support  and  medical  attention,  and  this  ir- 
respective of  the  fact  that  the  husband  was  living,  if  his  wages 
were  insufficient  to  care  for  the  mother." 

48.  State  ex  rel.  Hayden  v.   District  Court  of  St.  Louis  County,  133 
Minn.    454,  158  N.  W.   792,  13    N.  C.  C.  A.  331.    But  see   McDonald   v. 
Great  Atlantic  and  Pac.  Tea  Co.,  —  Conn.  — ,  (1920),  111  Atl.  65;  6  W. 
C.  L.  J.  525;  Henry  Pratt  Co.  v.  Indus.  Comm.,  —  111.  — ,  (1920).  127  N. 
E.  754.  6  W.   C.  C.   J.   296. 

49.  Smith  v.  National  Sash  and  Door  Co.,  96  Kan.  816,  153  Pac.  533. 
13  N.  C.  C.  A.  332. 

947 


§  373  WORKMEN'S  COMPENSATION  LAW 

But  under  the  English  Act  the  husband  of  the  mother  of  such 
illegitimate  child  is  not  considered  a  dependent  of  the  child.50 

An  unmarried  sister,  who  had  been  actually  supported  by  a 
brother  during  her  pregnancy  and  after  the  birth  of  a  child  up 
until  his  death,  was  entitled  to  compensation  as  a  partial  depend- 
ent, as  in  view  of  her  financial  means  and  ability  to  earn  a  livelihood, 
she  would  require  some  assistance  in  the  future.51 

In  the  absence  of  evidence  to  show  that  the  deceased's  infant 
brother  was  actually  dependent  upon  him,  or  that  his  father  was 
unable  to  support  him,  an  award  in  favor  of  the  brother  was 
erroneous.52 

A  half  brother  of  deceased,  who  was  living  with  his  mother, 
but  was  dependent  upon  and  receiving  support  from  the  deceased, 
was  an  actual  dependent  and  entitled  to  compensation,  irrespec- 
tive of  the  fact  that  the  deceased's  contributions  were  made  to 
the  mother  for  the  support  of  the  half  brother.53 

The  Texas  Act  makes  brothers  and  sisters  of  the  deceased  bene- 
ficiaries thereunder.54 

Where  the  deceased  left  a  minor  daughter,  his  sister  is  not 
the  next  of  kin,  and  can  have  no  claim  upon  the  death  benefit, 
unless  she  was  a  member  of  the  family  partly  dependent  upon 
his  earnings  for  support  at  the  time  of  his  death.55 

A  sister  who  is  supported  by  a  brother  under  an  agreement 
that  she  keep  house  cannot  be  deprived  of  compensation  on  the 

50.  McLean  &  Wife  v.  Moss   Bay  Iron  &  Steel  Co.,  2  B.  W.   C.   C. 
282,  6  N.  C.    C.    A.  244. 

51.  Jackson  v.  Indus.  Ace.  Comm.,  164  Wis.  94,  159  N.W.  561  13  N.C. 
C.  A.  458. 

52.  Mulraney  v.  Brooklyn  Rapid  Transit  Co.,  190  App.  Div.  774,  180 
N.  Y.  S.  654,  5  W.    C.    L.    J.  731. 

53.  O'Flynn's  Case,  (1919),  232  Mass.  582,.  122  N.   E.  767,  4  W.  C.  L. 
J.    105. 

54.  American  Indemnity  Co.  v.  Zylonia,  —  Tex.  Civ.  App.  — ,  (1919), 
212  S.  W.  183,  4  W.  C.  L.  J.   315;  Vaughan  v.  Southwestern  Insurance 
Co.,  —  Tex.  — ,  206  S.  W.  920. 

55.  In  re  Murphy,  230  Mass.  99,   117  N.  E.  794,  1  W.  C.  L.  J.  211. 


948 


DEPENDENCY.  §   373 

ground  that  she  could  support  herself,  she  being  a  competent 
stenographer,  but  precluded  from  working  because  of  ill  health." 

The  New  York  Act,  limiting  dependents  to  widows  and  next 
of  kin,  was  held  to  include  a  mother  and  half  brothers  and  sisters 
who  were  partially  dependent  upon  the  deceased." 

A  niece  who  stayed  with  an  uncle  while  attending  school,  re- 
ceiving board  and  clothes,  was  held  not  to  be  a  dependent  within 
the  meaning  of  the  Indiana  Act." 

A  sister  who  actually  receives  aid  from  her  brother  may  be  a 
dependent,  de'spite  the  fact  that  she  is  at  the  time  earning  wages, 
for  there  is  no  standard  set  as  to  just  when  a  person  will  be  said 
to  be  earning  sufficient  to  remove  him^>r  her  from  the  catagory 
of  dependents,  if  assistance  is  actually  being  received.  So  a 
stenographer  earning  $10.00  a  week  and  receiving  aid  from  her 
brother  may  be  found  to  be  partial  dependent.89 

Where  a  sister  is  dependent  upon  the  contribution  of  a  brother 
to  the  family  fund,  she  is,  under  the  New  York,  Act,  entitled  to 
compensation  upon  his  death,  irrespective  of  the  fact  that  the 
moneys  she  depended  upon  were  paid  into  the  family  fund,  or 
that  there  were  also  awards  made  to  the  father  and  mother  for 
their  proportionate  dependency.80 

A  sister-in-law,  with  whom  the  deceased  had  stopped  and  to 
whose  support  he  had  contributed,  is  not  a  dependent,  for  she  is 
not  included  in  the  classes  of  relatives  enumerated  by  the  Cali- 
fornia Compensation  Act.91 

56.  In  re  Lanraan,    64  Ind.  App.— ,  117  N.  E.  671,  1  W.  G.  L.  J.  185; 
Kenney  v.  City  of  Boston,  222  Mass.  401,  111  N.  E.  47,  13  N.  C.  C.  A.  461. 

57.  Bylow  v.  St.  Regia.  Paper  Co.,  179  N.  Y.  App.  Div.  555.  166  N.  Y. 
S.  874.  16  N.  C.  C.  A.  152. 

58.  In  re  Lanman,  64  Ind.  App.  — ,  117  N.  E.  671,  16  N.  C.  C.  A.  156. 

59.  Miller  v.   Riverside  Storage  and  Cartage  Co.,  189  Mich.  360,  155 
N.  W.  462,  13  N.  C.  C.  A.  462;    Hammill  v.  Fenn.  R.  Co.,  88  N.  J.  L.  717. 
13  N.  C.  C.  A.  465;    96  Atl.  292. 

60.  Walz  v.  Holbrook,  Cabot  and  Rollins  Corp.,  170  N.  Y.  APp.  Div.  6, 
13  N.  C.  C.  A.  464;    155  N.  Y.  S.  703;    In  re  Edward  N.  Johnston,  2nd 
A.  R.  U.  S.  C.  C.  73. 

61.  Western   Indemnity  Co.  v,  O'Brien,  2   Cal.   I.  A.   C.  419    (1916). 

949 


§  373  WORKMEN'S  COMPENSATION  LAW 

In  holding  that  a  half  sister,  who  was  also  a  sister  by  adoption, 
was  not  a  member  of  the  deceased's  family  nor  his  next  of  kin, 
the  court  said :  ' '  The  employee  was  not  the  head  of  a  family.  He 
maintained  no  household.  He  simply  was  a  boarder  in  the  family 
of  another.  He  paid  the  board  of  the  claimant  for  about  3  months 
before  his  death,  in  the  same  family.  He  was  under  no  obliga- 
tion to  support  her.  That  duty  rested  upon  her  father  who,  as 
the  board  found,  maintained  a  suitable  home  and  repeatedly 
asked  her  to  come  to  it.  These  circumstances  show  that  she  was 
not  a  member  of  the  family  of  the  employee.  Family  in  its  usual 
sense  means  'the  collective  body  of  persons  who  live  in  one  house, 
and  under  one  head  or  m%nagement. '  Dodge  v.  Boston  &  Provi- 
dence E.  Corporation  154  Mass.  299,  301.  That  is  the  significance 
ordinarily  attributed  to  the  word  under  the  act.  Kelley's  Case, 
222  Mass.  538.  See  Newman's  Case,  222  Mass.  563,  568."  As  to 
"next  of  kin,"  the  court  said:  "The  claimant  being  the  natural 
half  sister  and  the  sister  by  adoption  of  the  deceased  employee, 
manifestly  was  not  his  next  of  kin,  because  his  adopting  father, 
being  the  only  living  parent,  stands  in  the  relation  of  next  of 
kin  to  the  deceased  employee.  R.  L.  c.  154,  Sec.  7,  and  Chapter 
133,  Sec.  1.  The  words  'next  of  kin'  in  the  workmen's  compensa- 
tion act  refer  to  those  who  are  nearest  in  degree.  Kelley's  Case, 
222  Mass.  538,  541;  Murphy's  Case,  224  Mass.  592,  113  N.  E.  283. 
The  circumstance  that,  if  there  had  been  no  adoption,  or  if  the 
deceased  had  inherited  property  from  his  natural  relatives 
through  or  from  his  mother,  there  might  be  a  descent  of  that 
estate  to  some  one  other  than  the  adopting  father,  is  immaterial 
in  this  connection."  The  decree  was  modified  by  striking  out  all 
the  words  thereof  and  substituting  therefor  the  words:  "This 
case  came  on  to  be  heard  at  this  sitting  and  was  argued  by  coun- 
sel, and  thereupon,  upon  consideration  thereof,  it  is  ordered,  ad- 
judged and  decreed  that  the  claimant  was  not  a  dependent  upon 
the  employee  at  the  time  of  his  decease,  and  that  the  case  is  dis- 
missed." In  re  Gould,  215  Mass.  480,  4  N.  C.  C.  A.  60  (1913). 

950 


DEPENDENCY.  §   373 

Superior  Court  Equity  Rule  37,  Edition  of  1906.  As  so  modified 
the  decree  was  affirmed.82 

A  niece,  although  profiting  by  contributions  from  her  uncle, 
did  not  sustain  the  degree  of  relationship  required  of  dependents 
by  the  New  Jersey  Act.  It  is  not  enough  that  one  is  dependent 
upon  an  employee,  but  he  or  she  must  come  within  the  provisions 
of  the  statute  designating  who  shall  be  dependents.88 

A  parent  may  be  dependent  upon  a  minor  child  as  well  as  up- 
on an  adult  child,  and  a  contention  that  the  deceased's  parents 
were  not  entitled  to  compensation  because  the  deceased  left  no 
surviving  wife  or  child  was  overruled,  the  court  saying:  "The 
evident  intent  of  the  statute  is  to  limit  all  of  the  compensation 
to  66f  per  cent,  of  the  wages  of  the  deceased,  and  to  give  com- 
pensation to  the  surviving  wife,  children,  grandparents,  or  par- 
ents, who  are  dependent  only  if  such  compensation  can  be  brought 
within  the  maximum  percentage  allowed.  Each  parent  or  grand- 
child is  allowed  15  per  cent  of  such  wages  during  his  dependency, 
if  the  allowance  to  the  widow  and  children  does  not  equal  66$ 
per  cent,  of  the  wages.  This  condition  exists  where  there  is  no 
widow  or  children,  and  the  Commission  was  justified  in  awarding 
compensation  to  the  parents,  even  though  the  deceased  was  un- 
married at  the  time  of  his  death."84 

A  mother  may  be  dependent  upon  a  son,  even  though  her  hus- 
band is  living,  if  the  son  actually  contributes  to  her  support.85 

Where  a  mother  was  not  receiving  support  from  her  son  but 
claimed  compensation  on  the  theory  that  he  was  under  a  legal 
obligation  to  support  her,  the  court  said:  "The  claimant  was  not 
dependent  upon  deceased  at  the  date  of  the  accident  by  reason 

62.  In  re  Cowden,  225  Mass  66,  113  N.   E.  1036,  13  N.  C.  C.  A.  46«. 

63.  Berger  v.  Thomas  Oakes  &  Co.,  39  N.  J.  L.  J.  296,  13  N.  C.  C.  A. 
468. 

64.  Frlscia  v.  Drake  Bros.  Co.,  167  App.  Pfv.  496,  153  N.  Y.  8.  392,  » 
N.  C.  C.  A.  581. 

65.  Krauss  v.  Geo.  H.  Fritz  &  Son,  Inc.,  87  N.  J.  L.  321,  93  Atl.  578. 
9  N.  C.  C.  A.  582;    Garrabrant  v.  Morris  &  Somerset  Elec.  Co.,  37  N.  J. 
L.  J.  208;    Odgen  City  v.  Indus.  Comm..— Utah— ,   (1920),  193  Pac.  857, 
7  W.  C.  L.  J.  249. 

951 


§  373  WORKMEN'S  COMPENSATION  LAW 

of  any  support  rendered  by  deceased;  she  did  not  belong  to  the 
class  conclusively  presumed  to  be  dependents.  While  a  son  is 
always  under  a  moral  obligation  to  support  his  indigent  mother, 
he  is  under  no  legal  obligation  until  proceedings  under  the  stat- 
ute result  in  an  order  compelling  him  to  do  so. "  As  no  such  order 
had  issued,  the  claim  that  deceased  was  under  a  legal  obligation 
to  support  his  mother  was  not  sustained.66 

The  fact  that  a  father  could  maintain  his  family  independent 
of  the  deceased's  assistance,  will  not  preclude  a  recovery  where 
the  son  was  actually  assisting.67 

Where  a  son  contributes  to  a  father  from  moneys  other  than 
his  earnings,  the  father  is  not  a  dependent  upon  his  deceased's 
sons  earnings.68 

A  father,  who  recieves  contriubutions  from  his  son,  may  be  par- 
tially dependent  upon  him,  even  though  the  father  is  contribu- 
ting to  the  support  of  a  crippled  brother.69 

As  a  general  rule  parents  are  dependent  upon  a  son  who  con- 
tributes to  their  support,  but  the  difficulty  lies  in  determining  to 
what  degree  they  are  dependent.70 

Where  a  son  has  been  in  the  habit  of  regularly  contributing 
to  his  parent's  support,  a  temporary  cessation  of  contributions, 
when  the  son  changed  places  of  employment,  does  not  preclude 
an  award,  and  a  finding  that  had  death  not  intervened  the  son 
would  have  continued  his  contributions  was  sustained  by  the  evi- 
dence.71 

66.  Pinel  v.  Rapid  Ry.  Transit  System,  184  Mich.  169,  150  N.  W.  897, 
9  N.  C.  C.  A.  584. 

67.  Howells  v.  Vivian  &  Sons,   (1901),  50  W.  R.  163,  85  L.  T.  529,  18 
L.  T.  R.  36,  4  W.  C.  C.  106. 

68.  Kelley  v.  Arroll  &  Co.,    (1905),  42  Sc.  L.  R.   695,  6  N.  C.  C.  A. 
243. 

69.  -Legget  &  Sons  v.  Burke,  9  Sc.   L.  T.  518,   (1902),  6  N.  C.  C.  A. 
244. 

70.  Stevenson  v.  Illinois  Watch  Co.,  186  111.  App.  418,  5  N.  U.  C.  A. 
858;    Day  v.  Sioux  Falls  Fruit  Co.,— S.  Dak.—,  (1920),  177  N.  W.  816,  6W. 
C.L.  J.   216;    Geo.  A.  Lowe  v.  Indus.  Comm.,— Utah— ,   (1920),  190  JPac. 
934,  6  W.  C.  L.  J.  216. 

71.  Turner  v.  Miller  &  Richards,  3  B.  W.  C.  C.  305.  6  N.  C.  C.  A.  245; 
952 


DEPENDENCY.  §   373 

Under  the  Illinois  .Act  a  dependent  mother  is  entitled  to  the 
whole  award,  where  tb  deceased  also  leaves  nondependent  broth- 
ers and  sisters." 

A  father,  who  is  in  a  workhouse,  is  not  dependent  upon  a  son 
who  had  not  contributed  to  his  support  while  detained  there, 
though  under  an  indirect  obligation  to  do  so,  for  there  is  no  ac- 
tual dependency." 

Where  a  workman  is  capable  of  earning  enough  to  provide  for 
the  necessities  of  one  in  his  station  of  life,  he  is  not  a  dependent 
upon  a  son  who  has  been  making  contributions  to  his  support, 
where  it  is  not  shown  that  the  contribution  were  from  the  earn- 
ings of  the  deceased  son.74 

A  mother  is  a  dependent  of  a  deceased  son  who  actually  sup- 
ported her,  irrespective  of  the  fact  that  there  were  other  children 
liable  for  her  support.78 

Under  the  Washington  Act,  compensation  to  parents  who  are 
actually  dependent  upon  a  minor  child  is  not  limited  to  the  time 
when  the  deceased  should  become  of  age.  They  are  entitled  to 
compensation  as  long  as  the  dependency  lasts.78 

Under  the  Michigan  Act  a  claim  may  be  made  in  the  name  of 
both  the  father  and  mother  of  "a  deceased  workman,  and  there 
need  be  no  stipulation  filed  showing  that  the  contributions  were 
for  the  father's  benefit  alone.77 

Southern  Surety  Co.  v.  Hibbs,—  Tex.  Ci/.  App.— ,  221  S.  W.  303,  6  W.  C. 
L.  J.  224. 

72.  Matecny  v.  Vierling  Steel  Works,  187  111.  App.  448,  6  N.  C.  C.  A. 
247. 

73.  Rees  v.  Penrikyber  Nav.  Colliery  Co.,  6  W.  C.  C.  177,  1903,  1  K.  B. 
259,  6  N.  C.  C.  A.  266;    Trainer  v.  Addie  &   .ons'  Collieries  ltd.,  (1»04), 
42  S.  L.  R.  85;    7  F.  115,  6  N.  C.  C.  A.  266. 

74.  Sir  William  Arrol  &  Co.  Ltd.,  v.  Kelly,  7  F.  906,  42  Sc.  L.  R.  696, 
6  N.  C.  C.  A.  274. 

75.  Rlntoul  v.  Dalmeny  Oil  Co.,  Ltd.,  (1908),  1  B.  W.  C.  C.  340,  6  N.  C. 
C  A.  275;    Rogers  v.  Dow  Chemical  Co.,— Mich.  Ind.  Bd.— ,  6  N.  C.  C.  A. 
275. 

76.  Boyd  v.  Pratt,  72  Wash.  306,  130  Pac.  371,  »  N.  C.  C.  A.  6»». 

77.  Buhse  v.  Whltehead  &  Kales  Iron  Works,  194  Mich.  413,  160  N. 
W.  657. 

953 


§  373  WORKMEN'S  COMPENSATION  LAW 

Where,  under  the  New  York  Act,  a  grandmother  was  found 
to  be  actually  dependent,  compensation  was  awarded.78 

A  foster  mother  who  had  never  legally  adopted  the  deceased 
employee,  has  been  held  not  to  be  a  dependent  within  the  con- 
templation of  the  compensation  acts.79 

Under  some  acts,  neither  the  mother  nor  the  putative  father 
of  an  illegitimate  child  are  entitled  to  compensation,  especially 
where  the  mother  is  supported  by  her  husband,  with  whom  she 
is  living.80 

A  sister-in-law  was  not  a  dependent  within  the  statutory  classi- 
fication of  dependents  given  in  the  California  Act,  prior  to  the 
amendment  which  took  effect  August  8,  1915.81 

"In  an  action  under  the  Kansas  "Workmen's  Compensation  Act 
(Gen.  St.  1915,  Sections  5903,  5905)  by  the  father  and  mother  of 
a  deceased  workman  for  compensation  for  his  death,  a  finding  of 
partial  dependency  is  sustained  by  evidence  that  the  parents  did 
in  fact  depend  in  part  on  the  son's  earnings,  so  that  they  suffered 
injury  by  being  deprived  of  what  they  had  relied  on ;  and  this  is 
true  although  the  father  owns  a  home  for  which  he  paid  $1,450, 
owns  land  from  which  he  derives  income  of  $400  or  $500  a  year 
owns  shares  of  stock  in  a  corporation  on  which  he  has  paid  $5,000, 
and  is  employed  at  a  salary  of  $125  a  month."82 

A  brother  over  the  age  of  16  is  not  a  dependent  if  physi- 
cally capable  of  earning  his  living  at  any  kind  of  work.83 

The  provision  in  the  compensation  act,  limiting  compensation 
to  children  until  they  reach  an  age  designated  by  statute,  has  no 
application  to  a  minor  dependent,  a  sister  of  deceased,  whose  de- 

78.  Chase  v.  Fairbanks,  Morse  &  Co.,  4  N.  Y.  St.  Dep.  Rep.  369. 

79.  Re  Leonardo  Garcia  Op.  Sol.  Dep.  C.  &  L.  611;  Weaver  v.  The  As- 
sawaga,  Co.,  1  Conn.  Comp.  Dec.  331. 

80.  McLean   v.  Mass.  Bay  Hematite  Iron  &  Steel  Co.,   (1909),  100  L,. 
T.  811,  2  B.   W.  C.  C.  282;   In  re  Cowden,  225  Mass.  66,  113  N.  E.  1036. 

81.  Western  Indem.  Co.  v.  O'Brien,  2  Cal.  Ind.  Ace.   Com.   419. 

82.  Fennimore  v.  Pittsburg  Scammoa  Coal  Co., — Kans. — ,  164  Pac.  265, 
A  1  W.  C.  L.  J.  611. 

83.  Morgan  v.  Butte  Cen.  Min.  &  Mill  Co.,— Mont.— ,  (1920),  194  Pac 
496. 

954 


DEPENDENCY.  §    373 

pendency  was  not  founded  upon  the  relationship  of  parent  and 
child.84 

An  aunt  with  whom  deceased  and  his  sister  had  lived  since 
childhood,  and  who  had  property  of  her  own,  was  not  a  member  of 
deceased's  family  so  as  to  entitle  her  to  compensation,  but  from 
the  evidence,  deceased  was  a  member  of  her  household  and  not 
the  master  of  the  house.85 

Parents  are  dependent  upon  a  son  who  contributed  $824  to  the 
family  fund  where  his  contributions  exceeded  the  cost  of  his  main- 
tenance, even  though  $900  of  the  family  fund  was  used  to  pay  off 
an  indebtedness  on  the  home.88 

Where  the  son's  contributions  do  not  exceed  the  cost  of  his 
maintenance,  but  he  assists  in  paying  off  a  debt  of  the  family,  the 
parents  are  not  dependents.87 

Dependency  of  parents  under  the  Utah  Act  is  to  be  determined 
upon  the  facts  as  they  existed  at  the  time  of  the  injury,  although 
it  need  not  be  shown  that  contributions  were  made  at  the  precise 
time  of  the  injury,  still  mere  voluntary  gifts,  promises  or  inten- 
tions in  case  it  became  necessary,  will  not  establish  dependen- 
cy.88 

The  mere  fact  that  a  daughter  never  worked,  she  being  18  years 
of  age  will  not  constitute  her  a  dependent.89 

Where  a  son  was  managing  a  mother's  business,  not  receiving 
any  pay  from  her,  nor  contributing  to  her  support,  the  fact  that 
she  wrote  him  to  come  to  another  state  to  work  for  her  to  help  her, 
and  that  he  intended  to  do  so  as  soon  as  he  earned  enough  money  to 

84.  Haeselman  v.  Travelers'  Insurance  Co., — Colo. — ,  185  Pac.  343,  5 
W.  C.  L.  J.  153. 

85.  Stafford's  Case,  130   N.  E.  109,— Ma's.— ,  (1921), 

86.  Milwaukee  Basket  Co.  v.  Indus.  Comm.,— Wis.— ,  (1921),  181  N. 
W.  308. 

87.  Wisconsin-Minn.  Light  &  Power  Co.  v.  Indus.  Comm.,  —  Wis. 
— ,  (1921),  181  N.  W.  311. 

88.  Globe  Milling  Co.  v.  Indus.  Comm.,— Utah— ,  (1920),  193  Pac.  642. 
7  W.  C.  L.  J.  245;  Hancock  et  al.  v.  Indus.  Comm.,  —  Utah— ,  (1921),  198 
Pac.  169. 

89.  In  re  Mrs.  McGaughey,  2nd  A.  R.  U.  S.  C.  C.  74;   In  re    Addi- 
son  Ellison,  2nd  A.  R.  U.  S.  C.  C.  74. 

955 


§  374  WORKMEN'S  COMPENSATION  LAW 

go,  but  was  killed  before  going,  was  not  sufficient  to  establish  de- 
pendency.90 

Brothers  and  sisters,  not  being  dependents  under  the  New  York 
Act,  cannot,  in  view  of  the  statute  making  the  compensation  act 
the  only  authority  for  recovery  in  death  cases,  resulting  from  in- 
dustrial accidents,  proceed  in  an  action  at  law.91 

§  374.  What  Children  may  be  Dependents — When  the  word 
"child"  or  "children"  is  used  in  a  statute,  which  does  not  define 
the  meaning  of  such  word  nor  use  it  in  a  special  sense,  it  is  usually 
held  to  include  adopted  children,92  posthumous  children,93  and 
sometimes,94  though  not  generally,95  illegitimate  children.  It 
may,  96  or  may  not,  97  include  adults,  depending  upon  the  copteiit 
and  subject  matter  of  the  statute. 

Grandchildren  do  not  come  within  such  designation,98  unless  it 
appears  that  the  word  was  used  in  a  broad  sense,  as  synonymous 

90.  Alden  Coal  Co.   v.   Indus.   Comm.,— 111.— ,    (1920),  127   N.  B.   641, 
6  W.  C.  L.  J.274. 

91.  Shanahan  v.  Monarch  Engineering  Co.,  —  N.  Y.  App.  Div.  — ,  114  N. 
B.  795,  B  1  W.  C.  L.  J.  1213. 

92.  Gray  v.  Holmes,  57  Kan.  217,  45  Pac.  596;    Power  v.  Hattey,  85 
Ky.  671,  4  S.  W.  683;    In  re  Walworth's  Estate,  85  Vt.  322,  82  Atl.  7,  37 
L.  R.  A.    (N.  S.)  849. 

93.  State  ex  rel.  v.  Soale,  36  Ind.  App.  73,  74  N.   E.  1111;    Nelson  v. 
Galveston,  H.  &  S.  A.  R.  Co.,  78  Tex.  625,  14  S.  W.  1021,  11  L.  R.  A.  691, 
22  Am.  St.  Rep.  89. 

94.  Galveston,  H.  &  S.  A.  R.  Co.,  v.  Walker,  48  Tex.  Civ.  App.  52,  106 
S.  W.  705. 

95.  Williams  v.  Witherspoon,   171  Ala.  559,   55   So.  132;     Jackson  v. 
Hocke,  171  Ind.  371,  84  N.  E.  830;    Truelove  v.  Truelove,  172  Ind.  441, 
86  N.  E.  1018,  27  L.  R.  A.  (N.  S.  )  220,  139  Am.  St.  Rep.  404;    Lynch  v. 
Knooo,  118  La.  611,  43  So.  252,  8  L.  R.  A.  (N.  S.)  480,  10  Am.  Gas.  807, 
118  Am.  St.  Rep.  391;    Bowerman  v.  Lackawanna  Min.   Co.,  98  Mo.  App. 
308,  71  S.  W.  1062;    Gritla's  Case,  —  Mass.  — ,  (1920),  227  N.  E.  889,  6  W. 
C   L.  J.  319. 

96.  Sheffield  v.  Franklin,  151  Ala.  492,  44  So.  373,  12  L.  R.  A.  (N.  8.) 
884,  15  Ann.  Cas.  90,  125  Am.  St.  Rep.  37. 

97.  Griffith  v.  Griffith,  128  Ga.  371,  57  S.  E.  698;    Schleiger  v.  Northern 
Ter.  Co.,  43  Ore.  4,  72  Pac.  ?24. 

98.  Starrett  v.  McKim,  90  Ark.  520,  119  S.  W.  824;    Walker  v.  Vicks- 
956 


DEPENDENCY.  §    374 

with  a  word  of  larger  import,  such  as  "issue"  or  "descendants".  * 

Adopted  children  are  dependents  of  the  adopting  parents  with- 
in most  of  the  acts,1  provided  the  requirements  of  adoption  were 
complied  with  sufficiently.2 

But  a  child  adopted  by  the  widow  of  deceased,  after  his  death, 
is  not  a  dependent  of  deceased,  entitling  it  to  compensation  upon 
remarriage  of  the  widow.8 

And  it  is  not  comtemplated  that  one  may  adopt  children  for 
a  third  person ;  hence,  the  adopted  child  of  a  daughter  of  deceased 
is  not  his  heir  or  next  of  kin,  and  is  not  entitled  to  compensation 
as  his  dependent.4 

And  where  a  child  was  adopted  under  an  agreement  that  the 
mother  contribute  to  its  support,  but  the  only  contribution  made 
by  the  mother  was  at  the  time  of  adoption,  and  the  child  was 
being  supported  by  the  adopting  parents,  it  was  not  a  dependent 
of  its  mother.5 

Illegitimate  children  are  not  included  within  the  beneficial 
provisions  of  the  Compensation  Acts  of  Maryland,8  Illinois,  and 

burg,  S.  &  P.  R.  Co.,  110  La.  718,  34  So.  749;  Clements  v.  Maury,  50  Tex. 
Civ.  App.  158,  110  S.  W.  185;  Ross  v.  Martin,  104  Tex.  558,  140  8.  W.  432; 
Harrington  v.  Gibson,  109  Ky.  752,  60  b  W.  915. 

99.  Philips  v.  Lawing,  150  Ala.  186,  45  So.  494;  Keeney  v.  McVoy. 
206  Mo.  42,  103  S.  W.  946;  Wilkims  v.  Briggs,  48  Tex.  Civ.  App.  596, 
107  S.  W.  135,  140. 

1.  Yohe  v.  Erie  R.  Co.,  36  N.  J.  L.  J.  154,  9  N.  C.  C.  A.  589;    Winkler 
v.  New  York  Car  Wheel  Co.,  181  App.  Div.  239,  168  N.  Y.  Supp.   826,  1 
W.  C.  L.  J.  699,  16  N.  C.  C.  A.  149;  In  re  Yeople,  182  App.  Div.  438,  169 
N.  Y.  Supp.  584,  1  W.  C.  L.  J.  1135,  16  N.  C.  C.  A.  148;   Bugg  v.  Mitchell. 
48  Sc.  L.  R.  606,  (1911),  S.  C.  705,  (1911),  1  Sc.  L.  T.  293,  4  B.  W.  C.  C. 
400,  6  N.  C.  C    A.  263. 

2.  Yohe  v.  Erie  R.,  Co.  36  N.  J.  L.  J.  15  i,  9  N.  C.  C.  A.  689;    Ellis  v. 
Nevins  Coal  Co.— Kan— ,  163  Par.  654.  A  1  W.  C.  L.  J.  609. 

3.  State   ex  rel.  v.  District  Court  of  Ramsey  County,  133  Minn.  265. 
158  N.  W.  250,  13  N.  C.  C.  A.  276. 

4.  Winkler  v.  New  York  Car  Wheel  Co.,  181  App.  Div.  23».  168  N. 
Y.  Supp.  826,  1  W.  C.  L.  J.  699,  16  N.  C.  C.  A.  149. 

5.  Bugg  v.  Mitchell,  48  Sc.  L.  R.  606,   (1911),  S.  C.  705,  (1911),  1  Sc. 
L.  T.  293,  4  B.  W.  C.  C.  400,  6  N.  C.  C.  A.  263. 

6.  Scott  v.  Independent  Ice  Co.,  135  Md.  343,  109  All.  117.  5  W.  C.  L.  J. 
702. 

957 


§  374  WORKMEN'S  COMPENSATION  LAW 

New  York;  but  are  included  under  other  acts  when  they  were 
living  with,  and  dependent  upon  the  deceased  father,7  or  were 
receiving  their  support  from  him  at  the  time  he  met  with  the 
fatal  accident.8 

And  such  a  child  is  held  to  be  dependent,  although  the  con- 
tributions made  by  the  father  for  his  support  were  not  actually 
expended  in  his  behalf.9 

A  child  13  years  of  age  living  apart  from  her  father  must  be 
actually  dependent,  and  the  father  must  be  under  a  legal  obliga- 
tion to  support  her,  before  she  will  be  considered  a  dependent 
under  the  Indiana  and  Michigan  Acts.10 

A  child  over  18  years  of  age,  married  and  living  with  her  blind 
husband,  she  herself  being  totally  blind  and  therefore  physically 
incapacitated  from  earning,  is  entitled  under  the  Massachusetts 
Act  to  an  equal  share  of  the  death  benefit  with  the  surviving 
widow.11 

A  daughter  of  a  deceased  servant's  widow,  not  being  a  child 
of  the  deceased,  is  not  entitled  to  compensation,  even  though  she 
was  a  member  of  deceased's  family.12 

7.  Murrell  v.  Indus.  Commission,  291  111.  334,  126  N.  E.  189,  5  W.  C.  L. 
J.  673,  (1920);    Bell  v.  Terry  &  Tench  Co.,   177  App.  Div.  123,  163  M.  ¥. 
S.  733,    16    N.  C.  C.  A.  147. 

8.  Piccinim  v.  Conn.  Light  &  Power  Co.,  106  Atl.  330,  93  Conn.  423, 
4  W.  C.  L.  J.  18;     Scott's  Case,  117  Maine  436,  104  Atl.  794;    Roberts 
v.  Whaley,  192  Mich.  133,  158  N.  W.  209,  L.  R.  A.  1918  A.,  189,  13  N.  C. 
C,  A.  191;    Schofield  v.  Orrell  Colliery  Co.,  100  L.  T.  104,  2  B.  W.  C.  C. 
301;    Bowhill  Coal  Co.  v.  Neish  et  al.,  46    Sc.  L.    R.   250;     Taylor  v. 
Powell  Steam  Coal  Co.,  Ltd.,  9  B.  W.  C.  C.  477,  13  N.  C.  C.  A.  271;  Grit- 
ta's  case,— Mass.— ,   (1920),  127  N.  E.  889,  6  W.  C.  L.  J.  319.     Mitchell  v. 
Fairchild-Gilmore  W.  Co.,  —  Cal.  Ind.  Comm.  — ,  6  N.  C.  C.  A.  262;    Gour- 
lay  v.  Murray,  15  Sc.  L.  T.  1029,  6  N.  C.  C.  A.  262. 

9.  Bowhill  Coal  Co.  v.  Neish,  46  Sc.  L.  R.  250,  6  N.     .  C.  A.  268. 

10.  Schwartz  v.  Gerding  &  Auman  Bros.,— Ind.  App. — ,  j.21  M.  E.  89, 
3  W.  C.  L.  J.  282;  Roberts  v.  Whaley,  192  Mich.  133,  158  N.   W.   209, 
13  N.  C.  C.  A.  191. 

11.  Gavaghan's  Case,  232  Mass.  212,  122  N.  E.  5.  298,  3  W.  C.  L.  J.  643. 

12.  Holmberg's  Case.  231  Mass.  144,  120  N.  E.  353,  2  W.  C.  L.  J.  8»9. 

958 


DEPENDENCY.  §   374 

Married  daughters  not  dependent  upon  a  deceased  father,  but 
to  whom  he  had  made  contributions,  are,  under  the  Illinois  Act, 
entitled  to  compensation  on  his  death.18 

Support  of  an  incapacitated  daughter  22  years  old,  within  four 
years  prior  to  a  fatal  accident,  is  sufficient  under  the  Illinois  Act 
to  entitle  the  daughter  to  compensation  upon  the  death  of  the 
father.14 

Where  a  girl  had  been  given  to  her  grandparents  by  an  agree- 
ment in  writing"  when  her  parents  separated,  and  she  lived  with 
them  for  over  fifteen  years,  she  was  entitled  as  a  dependent  of  her 
grandfather  to  be  compensated  under  the  workman's  compensa- 
tion act,  despite  the  fact  that  the  parents  had  reunited.  The  evi- 
dence showed  that  the  mother  was  lacking  in  love  for  the  child, 
and  that  she  would  not  be  at  home  with  her  parents,  since  her 
real  home  was  with  her  grandmother.15 

A  grown  daughter,  though  capable  of  earning  her  own  living, 
may  be  found  to  be  a  dependent  of  her  father,  if  she  was  keeping 
house  for  him  and  at  the  time  of  his  death  actually  looking  to  him 
for  and  receiving  her  support  from  him.1" 

An  illigitimate  child  of  deceased's  daughter  cannot  be  said  to 
be  a  grandchild,  within  the  meaning  of  the  statute  making  grand- 
children of  deceased  his  dependents,  even  though  the  child  was 
living  with  the  family  of  the  deceased.  The  New  Jersey  statute 

13.  Peabody  Coal  Co.  v.  Indus.  Bd.  of  111.,  281  111.  579,  117  N.  E.  5*83, 
1  V.  C.  L.  J.  524,  16  N.  C.  C.  A.  143. 

1.4.  Mechanics  Furniture  Co.  v.  Indus.  Bd.  of  111.,  281  111.  530,  117  N.  E. 
98ri,  1  W.  C.  L.  J.  529,  16  N.  C.  C.  A.  143;  In  re  Wm.  A.  Gentry,  2nd 
A.  R.  U.  S.  C.  C.  72;  In  re  Edward  N.  Johnston,  2nd  A.  R.  U.  8.  U.  C. 
73. 

15.  In  re  Yeople,  182  App.  Div.  438,  169  N.  Y.  Supp.  584;    1  W.  C.  L,. 
J.  1135,  16  N.  C.  C.  A.  148. 

16.  Simms  v.  Lilleshall  Colliery  Co.,  Ltd.,  (1917),  W.  C.  &  Ins.  Rep. 
218,  16  N.  C.  C.  A.  146;    Moyes  v.  William  Dickson  Ltd.,  7  F.  386,  42  8. 
L.  R.  319,  (1905),  6  N.  C.  C.  A.  255;    In  re  Herrick,  217  Mass.  Ill,  104 
N.  E.  433,  4  N.  C.  C.  A.  544;  Marsh  v.  Boden.  7  W.  C.  C.  110.  (1905),  6  N. 
C.  C.  A.  275. 

959 


§  374  WORKMEN'S  COMPENSATION  LAW 

makes  provision  for  illigitimate  children,  but  not  for  illigitimate 
grandchildren.17 

Prior  to  the  amending  laws  of  1915,  to  the  Minnesota  Act,  a 
child  over  18  years  of  age,  though  supported  by  the  deceased, 
was  not  a  dependent ;  but  subsequent  to  the  amendment  a  widow- 
ed daughter  over  30,  deriving  part  of  her  support  from  her 
father,  is  a  partial  dependent  and  entitled  to  claim  compensation, 
though  she  is  not  physically  or  mentally  incapacitated.18 

"Where  a  mother  had  contributed  to  the  support  of  her  married 
son  and  his  family,  the  court,  in  denying  the  son's  claim  for  com- 
pensation, said:  "An  adult  son,  married  and  living  with  his  wife 
and  children,  separate  from  his  mother,  is  not  a  member  of  such 
mother's  family  within  the  meaning  of  the  Workmen's  Compen- 
sation Act  (Kan.  L.  1913,  c.  216,  Sec.  4.)."  And  in  paragraph  2, 
of  the  syllabus  of  this  case  it  is  stated:  "It  is  not  the  purpose  or 
policy  of  the  statute  to  continue  compensation  to  a  dependent 
minor  after  reaching  the  age  of  18  years  unless  physically  and 
mentally  incapable  of  earning  wages,  or  to  award  compensation  to 
an  adult  married  son,  the  head  of  a  family  living  separate  from 
that  of  his  mother,  who  from  her  wages  as  an  employee  made  small 
contributions  towards  his  support,  he  being  physically  and  men- 
tally capable  to  earn,  and  actually  earning,  fair  wages."19 

The  fact  that  a  father  lived  with  his  married  daughter,  paid 
board  and  contributed  otherwise,  did  not  make  her  dependent 
upon  him.  The  daughter  was  dependent  upon  her  husband,  and 
if  there  was  any  dependency  upon  the  father  it  was  the  husband 
who  was  dependent.20 

17.  Splitdorf  Electrical  Co.  v.  King,  90  N.  J.  L.  431,  103  Atl.  674,  16 
N.  C.  C.  A.  151. 

18.  State    ex   rel.    Maryland    Gas.    Co.    v.    District    Court    of    Ramsey 
County,  134  Minn.  131,  158  N.  W.  798,  13  N.  C.  C.  A.  263;    In  re  Carter, 
221  Mass.  105,  108  N.  E.  911,  9  N.  C.  C.  A.  579. 

19.  Taylor  v.   Sulzberger  &  Sons  Co.,  98  Kan.  169,  157  Pac.  435,  13 
N.  C.  C.  A.  265. 

20.  Montgomery  v.  Blows,  (1916),  1  K.  B.  899,  85  L.  J.  K.  B.  794,  (1916), 
W.  C.  &  Ins.  Rep.  89,  114  L.  T.  867,  32  T.  L.  R.  387,  60  Sol.  J.  427,  13  N. 
C.  C.  A.  268. 

960 


DEPKM'I  \.  V.  §    374 

Where  a  father  lias  abandoned  his  wife  and  children,  t'le 
mother  olitains  a  divorce  and.  the  custody  of  the  children  ha*  him 
•jivrn  to  a  person  other  than  the  father,  it  cannot  he  said  that  the 
ehildren  are  living  with  tin-  father  within  the  conclusive  statu- 
tory presumption  that  children  living  with  the  parent  are  depen- 
dent upon  such  parent.  The  legal  obligation  of  the  parent  to  sup- 
port the  child  is  insufficient  to  bring  the  child  within  the  statu- 
tory presumption;  and  to  establish  dependency  of  sneli  child- 
ren, actual  support  must  be  shown.-1 

Under  a  statute  making  illegitimate  children  presumptively  de- 
pendent when  they  are  part  of  the  decedent's  household  at  the 
cime  of  his  death,  an  illegitimate  posthumous  child  is  considered  a 
part  of  decedent's  household  at  the  time  of  his  death.22 

Where  the  father  of  the  unborn  child  of  an  unmarried  wompn 
publicly  expressed  his  intention  to  marry  the  woman  and  four  days 
prior  to  the  marriage,  was  killed,  it  was  held  that  the  child  wat*  en- 
titled to  an  award  for  total  dependency.28 

A  posthumous  child  has  been  held  to  be  dependent  upon  its 
father,  where  the  father  had  been  contributing  to  the  mother's 
support,  although  at  the  time  of  the  accident  he  was  not  so  con- 
tributing.24 

A  daughter  16  years  old,  living  apart  from  her  father  and  earn- 
ing $45.00  a  month,  is  a  dependent,  where  the  father  was  actually 
supporting  her.25 

Under  the  English  Act,  children  living  apart  from  their  father 
and  not  receiving  their  support  from  him,  are  not  considered  de- 
pendents.26 

21.  Northwestern  Iron  Co.  v.  Indus.  Comm.,  154  Wis.  97,  142  N.  VV.  271, 
3  N.  C.  C.  A.  670. 

22.  Klimchak  v.  Ingersoll  Rand  Co.,  39  N.  J.  L.  J.  275,  13  N.  C.  C.  A. 
274,  Williams  v.  Ocean  Coal  Co.,  Ltd.,  (1907),  9  W.  C.  C.  44.  6  N.  C.  C. 
A.  260. 

23.  Harris  v.  Powell   Duffeyn  Steam  Coal  Co.,  Ltd..  9  B.  W.  C.  C.  93, 
13   N.  C.  C.  A.  274. 

24.  Queen  v.  Clark,   (1906),  2  I.  R.  135;    4  Ir.  L.  T.  R.  19,  6  N.   C. 
C.  A.  260. 

25.  In  re  Hughes,  Ohio  I.  C,   (1914),  6  N.  C.  C.  A.  256. 

26.  Pollad  v.  Great  Northern  Ry.  Co.,  (1912),  W.  C.  it  Ins.  Rep.  379,  « 
N.  C.   C.   A.   260. 

961 
W.  C-— 61 


§  374  WORKMEN'S  COMPENSATION  LAW 

Posthumous  illegitimate  children  have  been  held  entitled  to 
compensation  as  dependents,  were  the  putative  father  recogniz- 
ed the  paternity  and  arranged  to  marry  the  mother.27 

A  child  by  a  former  marriage  is  entitled  to  an  equal  division  of 
an  award  with  the  surviving  widow.28  But  where  after  the  death 
of  the  step-father  the  child  goes  back  to  live  with  his  natural  father 
who  had  been  divorced,  and  the  father  assumes  the  obligation  of 
caring  for  him,  the  dependency  ceases  and  he  becomes  a  dependent 
of  his  natural  father,  the  same  rule  applying  in  cases  of  divorce 
where  custody  had  been  given  to  the  mother.29 

Dependent  step-children,  who  have  been  supported  by  the  de- 
ceased, are  included  within  the  word  "children"  in  the  New  Jers- 
ey Act.30 

Under  the  Kentucky  Code,  Supp.  1913,  Sec.  2477  m.  16,  provide 
ing  that  a  child  under  16  years  of  age -is  conclusively  presumed 
to  be  wholly  dependent  upon  a  deceased  employee,  and  that  step- 
parents shall  be  regarded  in  the  act  as  parents,  the  effect  of  the 
latter  provision  is  to  substitute  a  step-parent  for  an  actual  parent 
so  that  a  child  whose  natural  father  was  killed,  but  who  at  the 
time  was  living  with  her  stepfather,  is  not  entitled  to  share  in  the 
compensation.31 

The  Supreme  Court  of  Kansas,  in  construing  the  Kansas  Act, 
said:  "Dependents"  means  such  members  of  the  Workman's 
family  as  were  wholly  or  in  part  dependent  upon  the  workman  at 
the  time  of  the  accident.  And  'members  of  a  family'  for  the 
purpose  of  this  Act  means  only  widow  or  husband,  as  the  ease 
may  be,  and  children;  or  if  no  widow,  husband  or  children,  then 

27.  Orell  Colliery  Co.  v.  Sch«field,  (1909),  2  B.  W.  C.  C.  294,  6  N.  C. 
C.  A.  261;   Secor  v.  Security  Const.  Co.,  1  Cal.  I.  A.  C.  Bull,  6  N.  C.  C. 
A.  261;  Lloyd  v.  Powell  Duffryn  Steam  Coal  Co.,  Ltd.,  (1914),  A.  C.  733, 
7  B.  W.  C.  C.  330,  9  N.  C.  C.  A.  588. 

28.  Coakley  v.  Coakley,  216  Mass.  71,  4  N.  C.  C.  A.  508. 

29.  In  re  John  David  Anderson,  3rd  A.  R.  ~T.  S.  C.  C.  97;    Gold  Dredg- 
ing Co.  v.  Indus.  Comm.,  194  Pac.  1. 

30.  Newark  Paving  Co.  v.  Klotz,  —  N.  J.  L.  — ,  91  Atl.  91,  6  N.  C.  C.  A. 
263.     See  Wash.  Act,  1921  Am.  §  6604-3. 

31.  Hoover  v.  Cent.  Iowa  Fuel  Co.,  —  la.  — ,  (1920),  176  N.  W,  945,  5 
W.  C.  L.  J^  840. 

962 


DEPENDENCY.  §    374 

parents  and  grandparents;  or  if  no  parents  or  grandparents, 
then  grand-children  ;  or  if  no  grandchildren,  tlicii  brothers,  and 
sisters.  In  the  meaning  of  this  section  parents  include  step- 
parents, children  include  step-children  and  grand-children  include 
step-grandchildren,  and  brothers  and  sisters  include  step-brothers 
and  step-sisters,  and  children  and  parents  include  that  relation 
by  legal  adoption. '-' 

Posthumous  children  in  some  jurisdictions  have  been  held  not 
to  be  dependents  of  deceased  workmen.83 

Where  an  employee's  minor  son  enlisted  in  the  marines  and 
his  four-year  term  expired  after  he  reached  his  maturity  he 
voluntarily  emancipated  himself  with  his  father's  consent.  There 
was  no  legal  obligation  on  the  father  to  support  him  and  he  was 
therefore  not  entitled  to  compensation  as  dependent  on  the  death 
of  the  father.34 

Divorce  does  not  effect  the  father's  liability  for  support  of  a 
child  in  the  absence  of  proof  of  the  son's  ability  to  support  him- 
self and  of  his  emancipation,  even  though  the  son  attained  his 
majority  pending  the  proceedings.85 

"Where  an  employee  was  living  in  adulterous  relations  with  an 
undivorced  wife  of  another  and  voluntarily  supporting  a  child  o£ 
hers  by  her  undivorced  husband,  it  was  held  that  the  mothers 
wrong  could  not  be  implied  to  the  child  and  therefore?  the  child 
was  entitled  to  compensation  as  his  dependent.80 

32.  Smith  v.  National  Sash  &  Door  Co.,  96  Kan.  816,  153  Pac.  533. 

33.  Villar  v.  Gilbey,   (1907),  A.   C.   139;   William  v.  Ocean  Coal  Co., 
(1907),  97  L.  T.  150,  9  W.  C.  C.  44;    Day  v.  Markham,  (1904),  6  W.  C.  C. 
115;    Secor  v.  Security  Const.  Co.,  1  Cal.  Ind.  A.  C.   (Part  II)  93. 

34.  Iroquois  Iron  Co.  v.  Indus.  Comm.  111.,  —  111.  — ,  128  N.  E.  289,  6  W. 
C.  L.  J.  646-    Note;    For  cases  of  children  conclusively  presumed  to  be 
dependent  upon  deceased,   see   "Presumption   Relating   to   Dependency." 
Section  368  ante. 

35.  Panther  Creek  Mines  v.  Indus.  Comm.,  —  111.  — ,  (1921),  130  N 
321;   Auburn  &  Alton  Coal  Co.  v.  Indus.  Comm..— 111.— ,  (1921),  130  N.  B. 
322. 

36.  Moore   Shipbuilding   Corp.   v.   Indus.   Comm.,— Cal— ,    (1921),   196 
Pac.  257. 

963 


§  375  WORKMEN'S  COMPENSATION  LAW 

§  375.  Alien  Dependents,  and  Constitutionality  of  Provision 
Pertaining  to  Aliens. — The  New  York  Act  provides  for  payment  to 
aliens  not  residents  of  the  United  States,  the  same  amount  pro- 
vided for  residents,  except  that  dependents  in  any  foreign  country 
shall  be  limited  to  surviving  wife  and  child  or  children  or,  in 
the  absence  of  those,  to  father  or  mother  or  grandparents,  whom 
the  employee  has  supported  for  a  year  prior  to  the  accident.  Under 
the  provisions  of  this  Act,  an  award  of  25%  to  each  parent  was 
an  error,  and  should  be  modified  by  striking  out  the  award 
in  favor  of  the  mother,  as  the  award  to  both  parents  cannot  exceed 
25  %.™ 

Where  alien  non  resident  parents  or  wife  have  not  been  heard 
of  or  from  within  three  or  four  years,  there  must  be  actual  proof 
that  they  are  alive.  The  rule  that  one  is  not  presumed  to  be  dead 
until  after  he  has  not  been  heard  of  for  seven  years  cannot  be 
invoked  to  establish  the  presumptive  fact  that  the  wife  or  parents 
are  living.38 

Alien  dependents  of  a  deceased  servant,  subjects  of  a  friendly 
foreign  nation  are  not  excluded  from  the  benefits  of  the  Workmen's 
Compensation  Acts.  But  the  question  of  dependency  is  one  of 
fact,  and  where  a  wife  owns  a  lot  with  a  good  house  upon  it  for 
the  family  to  live  in,  it  cannot  be  said  that  she  is  totally  dependent 
upon  her  husband's  wages.39 

Upon  proof  of  dependency  an  alien  wife  is  entitled  to  compen- 
sation on  the  death  of  her  husband,  provided  she  relied  upon  him 

37.  Skarpeletzos    v.  Counes  &    Raptis  Corp.,    228  N.   Y.  46,    126  N.    E. 
268,  5  W.  C.  L.  J.  720;  Casella  v.  McCormick,  180  N.  Y.  App.  Div.  94,  167 
N.  Y.  S.  564,  16  N.  C.  C.  A.  219;  Intini  et.  ux.  v.  Stittville  Canning  Co., 
181  N.  Y.  S.  890,  191  App.  Div.  933,  (1920),  6  W.  C.  L.  J.  83. 

38.  Keystone  Steel  &  Wire  Co.  v.  Indus.  Comm.,  289  111.  587,  124  N.  E. 
542,  5  W.  C.  L.  J.  40. 

39.  In  re  McDonald,   229  Mass.  454,  118  N.  E.  949,  1  W.  C.  L.  J.  808, 
16  N.  C.  C.  A.  87,  210;     In  re  Derinza,  229  Mass.  435,  118  N.  E.  942,  1  W. 
C   L.  J.  795,  16  N.  C.  C.  A.  87,  210;  In  re  Mooradjian,  229  Mass.  521,  118 
N.  E.   951,  1   W.  C.    L.  J.  813,    16  N.  C.  C.   A.  215,    920;    Victor    Chemical 
Works   v.  Indus.   Bd.,   274  111.   11,  113   N.  E.,   173;      Vujic  v.   Youngstown 
Sheet  &  Tube  Co.,  220  Fed.  390.  (D.  C.) ;  Eretza  v.  Ft.  Montgomery  Iron 
Works,   (1920),  184  N.  Y.  S.  789,  7  W.  C.  L.  J.  98;    In  re  Pagnoniee,  — 
Mass.  — ,  118  N.  E.  948,  1  W.  C.  L.  J.  806. 

964 


DEPENDENCY.  §    375 

for  support,  but  this  is  a  fact  to  be  prove:!,  ;in<l  no  presumption 
exists  in  favor  of  an  alien  wife  living  apart  from  her  husband.40 

Where  deceased  left  a  wife  in  M  forc:«_rn  country  and  did  not 
contribute  to  her  support,  a  mere  expression  of  ;m  intention  to 
bring  his  family  over  when  he  had  earned  enough  money,  will  not 
suffice  to  constitute  her  a  dependent.41 

It  has  been  held  in  Texas  that  an  alien  is  not  precluded  from 
the  protection  of  the  Texas  Act  merely  because  the  foreign  eoun- 
try  did  not  accord  like  privileges  to  Americans.42 

Where  an  employee  had  been  living  in  this  country  for  ei<_rlit 
years,  during  which  time  his  wife  had  been  rcsidinir  in  a  foreiirn 
country  and  there  was  no  evidence  to  show  that  she  was  living 
apart  from  him  for  justifiable  cause  or  that  he  had  deserted  her, 
she  was  held  not  to  be  entitled  to  compensation  under  the  Mas- 
sachusetts Act.42 

Even  though  the  act  provides  for  payment  to  aliens  and  non- 
resident dependents,  it  does  not  violate  any  constitutional  pro- 
vision; for  "if  it  may  reasonably  be  thought  that  the  best  interests 
of  the  state,  of  the  employers  of  labor,  and  of  those  employed,  as 
well  as  the  public  generally,  are  promoted  by  imposing  upon  the 
industry  or  the  public  the  burden  of  industrial  accident,  the  resi- 
dence and  citizenship  of  dependents,  are  factors  entirely  foreign 
to  the  discussion."  44 

An  act  is  not  unconstitutional  because  it  provide,  that  nonresi- 
dent alien  dependents  receive  only  33  per  cent  of  the  amount 

40.  Kalcic  v.  Newport  Mining  Co.,  197  Mich.  364,  163  N.  W.  962,  16  N. 
C.  C.  A.  211;   In  re  Gorski,  227  Mass.  456,  116  N.  E.  811,  16   N.  C.  C.  A. 
217.      • 

41.  Ludwig  v.  American  Car  ft  Fdry.  Co..  194  Mich.  613.  161  N.  W.  835. 
16  N.  C.  C.  A.  212. 

42.  Southwestern  Surety  Ins.  Co.  v.  Vickstrom,  —  Tex.  Civ.  App. — , 
203  S.  W.  389.  16  N.  C.  C.  A.  225. 

43.  In  re  Fierro's  Case,  223,  Mass.  378.  Ill  N.  E.  95H,  13  N.  C.  C.  A. 
544. 

44.  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686.  151  Pac.  398.  10 
N.  C.  C.A.I;     Greene  v.    Caldwell,  170  Ky.  571.     12  N.  C.  C.  A.     520, 
186   S.  W.  648;   Commonwealth   v.  Goldberg,   167   Ky.  96,   180  S.   W.   68; 
Western  Metal  Supply  Co.  v.  Pillsbury,  172  Cal.  407,  156  Pac.  491. 

965 


§  375  WORKMEN'S  COMPENSATION  LAW 

allowed  to  residents  of  the  state.45  But  the  Kansas  Supreme  Court 
holds  to  the  contrary.46 

An  alien  mother  and  sister  are  entitled  to  compensation  as 
total  dependents  irrespective  of  the  fact  that  an  aunt  and  a 
sister  occasionally  made  them  presents  of  little  value.47 

The  New  Jersey  Act  excludes  nonresident  aliens  from  the  bene- 
fit of  the  act,  and  this  exclusion  does  not  entitle  them  to  a  common- 
law  action  for  wrongful  death.48  But  where  there  is  no  special 
provision  in  the  act  excluding  nonresident  aliens  they  are  entitled 
to  compensation.49  And  the  personal  representative  of  a  deceased 
resident  in  the  province  can  recover  compensation.50 

A  foreigner,  who  is  a  resident  of  a  nation  with  which  the  United 
States  has  a  treaty  guaranteeing  the  same  privileges  and  protec- 
tion to  aliens  as  to  natives,  does  not  have  a  right  of  action  for  the 
death  of  a  workman,  where  the  law  of  a  state  gives  such  right  of 
action  to  native  relatives  and  expressly  denies  it  to  aliens.51 

Under  Sec.  39,  C.  15  P.  Code  1918,  as  amended  by  Sec.  39,  C. 
131,  Acts  1919,  ("W  Va.)  the  executor  or  administrator  of  the  estate 
of  a  deceased  nonresident  alien  beneficiary  may  be  officially  repre- 
sented in  the  collection  of  such  accrued  and  unpaid  installments,  by 
the  consular  officer  of  the  country  of  which  such  beneficiary  was  a 
citizen  or  subject.52 

45.  Zancanelli  v.   Central  Coal  etc.  Co.,  25  Wyo.  511,  173  Pac.  981,  2 
W.  C.  L.  J.  715.    See  Utah  Act  1921  Am.  §  3140  (8). 

46.  Vietti  v.  Geo.  K.  Mackie  Fuel  Co.,  —  Kan.  — ,  (1921),  197  Pac.  881. 

47.  Petrozino  v.  American  Mutual  Liab.  Co.,  219  Mass.  498,  107  N.  E. 
370,  9  N.  C.  C.  A.  594. 

48.  Ronca  v.  De  Grave,  38  N.  J.  L.  J.  56,  9  N.  C.  C.  A.  594;  Gregutis 
v.  Waclark  Wire  Wks.,  86  N.  J.  L.  610,  92  Atl.  354,  Constanzo  v.  Hanover 
Brick  Co.,  37  N.  J.  L.  J.  52.     See  S.  Dak.  Am.  1921,  §  9458  (8). 

49.  Varesick  v.  British  Columbia  Copper  Co.,  (1906),  12  B.  C.  286,  1  B. 
W.  C.  C.  446;  In  re  Jorgensen,  2nd  A.  R.  U.  S.  C.  C.  75. 

50.  Krzus  v.  Crows  Nest  Pass  Coal  Co.,  6  B.  W.  C.  C.  271,  (1912),  A. 
C.  580,  107  L.  T.  77,  28  T.  L.  Rep.  488,  81  L.  J.  P.  C.  227. 

51.  De  Biasi  v.  Nomandy  Water  Co.,  228  Fed.  234. 

52.  Poccardi  v.  Ott,  —  W.  Va.  — ,  (1920),  104  S.  E.  54,  6  W.  C.  L.  J. 
721. 

966 


i>i:n.M'KXCY.  §  376 

§  376.  Illegal  and  Divorced  Wives. — Where  a  husband  and 
wife  were  living  apart  after  an  interlocutory  judgment  of  divorce 
for  the  wife,  which  contained  no  provision  for  her  support,  it 
was  held  that  they  were  living  apart  by  agreement  not  providing 
for  the  wife's  support,  so  that,  under  section  175,  tin-  husband 
was  not  personally  liable  for  her  support,  and  she  was  not  enti- 
tled to  the  presumption  of  total  dependency  created  by  the  Cali- 
fornia Workmen's  Compensation  Act,  Sec.  14,  Sub'd.  A.  (I).*8 

A  wife  who  is  not  living  with  her  husband,  but  who  is  receiving 
from  him  money  paid  pursuant  to  a  decree  awarding  her  separate 
maintenance,  is  within  section  14,  of  the  California  Act,  declaring 
that  a  wife  shall  be  conclusively  presumed  dependent  for  sup- 
port upon  a  husband  with  whom  she  was  living  or  for  whose 
support  such  husband  was  legally  liable.84 

In  some  states  a  common-law  marriage  is  sufficient  to  support 
an  award  to  one  claiming  dependency  as*  the  wife  of  deceased.55 

But  the  claim  of  a  woman  as  dependent  cannot  be  allowed 
on  a  mere  showing  that  she  was  living  with  deceased  as  his  wife, 
there  being  no  legal  marriage;56  nor  upon  proof  that  she  had 
sustained  adulterous  relations  with  the  deceased.57 

A  woman  who  in  good  faith  lived  with  an  employee  as  his  law- 
ful wife,  believing  that  their  marriage  license  in  itself  constituted 
marriage,  is  entitled  to  compensation  under  the  California  Act, 

53.  London  Guarantee  &  Accident  Co.,  Ltd.,  v.  Indus.  Ace.  Comm., — 
Cal  — ,  (1919),  184  Pac.  Rep.  864,  5  W.  C.  L.  J.  20. 

64.  Continental  Casualty  Co.  v.  Pillsbury,— Cal.— ,  (1919),  184  Pac. 
C58,  5  W.  C.  L.  J.  6. 

55.  Voshall  v.  Kelley  Island  L.  &  T.  Co.,  13   Ohio  L,.  R.  278,  60  Ohio 
L.  Bui.  361.  13,  N.  C.  C.  A.  199;    In  re  Morris,  (Ohio  Ind.  Comm.),  13  N. 
C.  C.  A.  199;   Meghan  v.  Edward  Valve  &  Mfg.  Co.,  64  Ind.  App.— .  117 
N.  E.  265,  16  N.  C.  C.  A.  86;  Brown  v.  Long  Mfg.  Co.,— Mich.— ,  (1921), 
182  N.  W.  124. 

56.  Scott  v.  Independent  Ice  Co.,  135  Md.  340,  5  \V.  C.  L.  J.  702,  109 
Atl.  117. 

57.  Illinois  Steel  Co.  v.  Industrial  Comm.,  290  111.  694,  125  N.  E.  252, 
5  W.  C.  L.  J.  199;    Meehan  v.  Edward  Valve  &  Mfg.  Co.,  64  Ind.  App. 
— ,    117  N.  E.  265,  16  N.  C.  C.  A.  85. 

967 


§  377  WORKMEN'S  COMPENSATION  LAW 

1917,  Sec.  14,  notwithstanding  a  statute  requiring  solemnization 
of  marriage.58 

It  is  held  in  other  jurisdictions  that  an  honest  but  mistaken 
belief  that  the  claimant  was  married  to  the  deceased  employee 
does  not  constitute  her  a  dependent.59 

A  divorced  wife  who  was  forbidden  by  the  decree  to  marry 
within  a  year,  cannot  constitute  herself  the  lawful  wife  of  a  third 
party  within  the  forbidden  time,  within  the  meaning  of  the  com- 
pensation act.  Such  marriage  is  void  from  its  inception,  and 
does  not  even  constitute  a  common  law  marriage.60 

A  divorced  wife,  who  is  supporting  herself  by  her  own  efforts, 
cannot  be  said  to  be  a  dependent,  for  dependency  can  not  be 
found  where  there  was  simply  a  legal  obligation  on  the  part  of 
the  husband  to  support  his  wife.  There  must  be  a  reasonable 
probability  that  such  obligation  will  be  fulfilled.61 

« 

§  377.  Desertion  and  Non-Support. — To  constitute  desertion 
within  the  Iowa  Code,  Supp.  1913,  Sec.  2477  M16,  (c)  (1).  which 
creates  a  conclusive  presumption  that  the  surviving  spouse  is 
wholly  dependent  upon  the  deceased  employee,  unless  she  will- 
fully deserted  him,  there  must  be  cessation  of  the  marriage  rela- 
tion, intent  to  desert,  and  absence  of  consent  or  misconduct  upon 
the  party  alleged  to  have  been  deserted.  Therefore,  where  a 
husband  is  unable  to  support  his  wife,  her  separation,  with  his 
consent,  to  earn  wages,  does  not  constitute  desertion.62 

58.  Femescal    Rock    Co.    v.    Indus.    Ace.    Comm.,— Cal— ,    (1919),    1SS3 
Pac.  447,  4  W.  C.  L.  J.  469. 

59.  In  re   Jones,    (Ohio  Ind.  Comm.,),  6  N.  C.  C.  A.   250;     Meton  v. 
State  Indus.  Ins.  Department,  104  Wash.  652,  177  Pac.  696,  3  W.  C.  L.  J. 
541;    Armstrong  v.  Indus.  Comm.  of  Wis.,  161  Wis.  530,  154  N.  W.  844, 
13  N.  C.  C.  A.  200;     Salvador  v.  Interborough  Rapid  Transit  Co.,  3    N. 
Y.  St.  Ind.  Bull.  10,  5  N.  Y.  St.  Dep.  Rep.  438,  (1915),  13  N.  C.  C.  A. 203. 

60.  Hall  v.  Ind.  Comm.  of  Wis.,  166  Wis.  364,  162  N.  W.  312,  16  N.  C.  C. 
A.  77;    Williams  v.  Williams,  46  Wis.  464,  13  N.  C.  C.  A.  202;    Lanham 
v.  Lanham,    136  Wis.  360;    Armstrong  v.  Ind.  Comm.  161  Wis.  530. 

61.  Sweet  v.  Sherwood  Ice  Co.,  40  R.  I.  203,  100  Atl.  316,  16  N.  C.  C. 
A.  85. 

62.  James  Black  D.  G.   Co.  v.  Iowa  Indus.  Comm., — Iowa,   (1919),  173 
N.  W.   23,  4  W.  C.   L.  J.   379. 

968 


DEPENDENCY.  §    378 

A  deserted  wife,  who,  subsequent  to  the  desertion,  has  been 
guilty  of  adultery,  is  not  a  dependent  of  her  husband  within  the 
meaning  of  the  Maine  Act;  desertion  under  the  Act  having  its 
usual  meaning  in  connection  with  marital  relations.63 

A  wife  who  deserts  her  husband,  or  has  been  deserted  by  her 
husband,  and  who  does  not  receive  support  from  him,  is  not  a  de- 
pendent.64 

But  where  the  wife  was  actually  destitute  of  funds,  it  was  held 
that  she  was  dependent  upon  her  husband's  earnings,  even 
though  he  had  deserted  her  and  did  not  support  her.68 

Children  deserted  by  their  father,  and  not  supported  by  him. 
are  not  presumed  to  be  dependent.66 

Desertion  and  non-support  of  chidren  by  a  father  for  three  years, 
followed  by  an  agreement  to  contribute  from  his  earnings,  with 
which  he  was  prevented  from  complying,  because  of  the  accident, 
makes  dependency  a  question  of  fact  for  the  arbitration  conui.it 
tee  to  decide.*7 

Where  a  workman  deserts  his  wife  and  a  minor  child,  whom 
he  has  taken  into  his  family  but  never  adopted,  and  he  does  not 
contribute  to  their  support  for  several  months  prior  to  his  death, 
the  minor  child  is  not  entitled  to  prevail  in  a  claim  of  depend 
ency.68 

§  378.  Marriage  or  Remarriage  of  Dependent. — Where  there 
is  no  provision  made  in  the  act  to  the  effect  that  remarriage  of 
a  deceased  workmen's  dependent  widow  will  terminate  further 

63.  Scott's  Case,  117  Me.  436,  104  All.  79t,  3  W.  C.  L.  J.  49. 

64.  Batista  v.  West  Jersey  &  Seashore  R.  Co.,  85  N.  J.  L.  801,  88  All. 
954,  4  N.  C.  C.  A.  781;    Devlin  v.  Pelaw-Main,  Colliery  Co.,  5  B.  W.  C.  C. 
349,   (1912),  W.  C.  R.  225;    Lindsay  v.  M'Glashen  &  Sons  Ltd.,  1   B.  W. 
C.  C.  85,  6  N.  C.  C.  A.  260;  Miller  v.  Pub.  Serv.  R.  Co.,  84  N.  J.  L.  174,85 
Atl.  1030;  Polled  v.  Great  Western  Ry.  Co.,  (No.  2),  (1912),  5  B.  W.  C. 
C.  620  C.  A. 

65.  Sneddon    v.  Robert  Addie  &  Sons'  Collieries,  Ltd..  12  Sc.  L.   T. 
229,  6  N.  C.  C.  A.  250. 

66.  Lee  v.  Bessie,  (1912),  W.  C.  &  Ins.  R.  57.  6  N.  C.  C.  A.  259. 

67.  Bobbie  v.  Egypt  &  Levant  S.  S.  Co.,   (1913).  W.  C.  &  Ins.  Rep. 
76,  6  N.  C.  C.  A.  259. 

68.  Mahoney  v.  Gamble  Desmond  Co..  90  Conn.  255.  96  Atl.  1025. 

969 


§  378  WORKMEN'S  COMPENSATION  LAW 

payments,  remarriage  will  not  affect  the  payment  of  benefits,  and 
an  award  is  absolute  and  not  conditional.69 

The  ascertainment  of  dependency  is  made  as  of  the  time  of  the 
accident,  therefore,  in  the  absence  of  statutory  provisions  to  the 
contrary,  subsequent  intervening  events  will  not  deprive  the  de- 
pendent of  compensation.  Remarriage  after  compensation  has 
been  awarded,  but  before  termination  of  payments,  does  not  de- 
prive the  party  from  receiving  further  payments  under  the  allow- 
ance.70 

Where  the  statute  does  not  specifically  mention  marriage  as  a 
condition  of  terminating  payments,  the  marriage  of  a  dependent 
sister  does  not  disentitle  her  to  further  payments.71 

Where  the  New  York  State  Industrial  Commission  ordered  the 
employer  to  pay  to  the  state  insurance  fund  the  commuted  value 
of  an  award  to  the  widow  and  children  of  a  deceased  employee, 
and  the  original  award  directed  payment  to  the  widow  during 
widowhood,  and  to  the  children  until  they  arrived  at  the  age  of 
18  years,  the  court,  in  reversing  the  award,  said:  "The  order 
appealed  from  which  required  the  deposit  in  the  state  fund  by 
the  employer  and  self  insurer  of  the  money  to  meet  the  future 
payments  of  an  award  was  properly  reversed  by  the  appellate  di- 
vision, for  the  reason  that  section  27  of  the  Workmen's  Compen- 
sation Law  (Consol.  Laws,  c.  67),  which  requires  such  deposit, 
does  not  apply  to  an  award  made  to  a  widow.  It  does  not  contem- 
plate and  fails  to  provide  for  weighing  or  determining  the  con- 
tingency of  the  widow's  remarriage — which  would  bring  about  a 
cessation  of  the  payments  to  her."72 

69.  Newton  v.  Rhode  Island  Co.,  —  R.    I.    — ,  105  Atl.    363,    (1919), 
3  W.  C.  L.  J.  527;   Wangler  Boiler  Co.  v.  Indus.  Comm.,  287  111.  118,  122 
N.  E.  366.  3  W.  C.  L.  J.     617;    Adleman  v.  Ocean  Ace.  &  Guar.  Co.,  130, 
Md.  572,  101  Atl.  529.  See  Utah  Act  1921  Am.,  §  3140   (5). 

70.  Bott's    Case,    230  Mass.    152,  119    N.  E.    755,  16    N.  C.   C.   A.    864; 
Hanson  v.  Brann  &  Stewart  Co.,   90  N.  J.  L.  444,  103  Atl.  696,  16  N.  C. 
C.  A.  864;    The  New  Jersey's  Act  has  been  amended  so  as  to  terminate 
Ijayments  in  the  event  of  remarriage. 

71.  Adleman  v.  Ocean  Accident  and    Guarantee  Corp.,   130  Md.  572, 
101  Atl.  529,  16  N.  C.  C.  A.  865,  A  1  W.  C.  L.  J.  738. 

72.  Adams  v.  New  York  &  O.  W.  R.  Co.,  220  N.  Y.  579,  114  N.  E.  1046, 
16N.  C.  C.  A.  866. 

970 


DEPENDENCY.  §   379 

A  widow  adopted  a  child  subsequent  to  the  death  of  her  husband, 
and  later  remarried.  Upon  remarriage  a  claim  was  made  on  behalf 
of  the  child  for  a  share  of  the  compensation  awarded  to  the  widow. 
Tlit>  court,  in  denying  compensation,  said:  "The  whole  purpose 
of  the  compensation  Act  was  to  make  pecuniary  provision  for  those 
li;ivin{*  lawful  claims  upon  the  workman,  particularly  his  widow 
and  his  children.  The  petitioner  in  the  case  at  bar  was  not  the 
child  of  the  deceased,  nor  of  his  widow.  She  made  him  her  child 
after  the  death  of  the  decedent,  but  that  fact  cannot  bring  him 
within  the  statute.  The  statute  must  be  construed  as  having  refer- 
ence and  application  to  conditions  existing  at  the  time  of  the  death 
of  the  workman,  and  not  to  relationships  created  by  the  widow 
after  his  death.  And  though  the  statute  might  be  construed  to 
include  children  of  the  widow  by  a  former  marriage,  who  at  the 
time  of  his  death  were  living  with  and  dependent  upon  the  work- 
man for  support,  it  cannot  well  be  construed  to  include  children 
coming  into  an  adopted  relationship  to  the  widow  after  his 
death."78 

Whore  a  husband  instituted  proceedings  during  his  lifetime 
against  his  employer,  his  wife,  not  being  a  party  in  interest,  would 
not  be  affected  by  the  outcome  of  such  proceeding,  except  that 
there  might  be  a  possible  deduction  of  her  claim  for  payments 
actually  made  him.7* 

§  379.  Eights  of  Dependents  Independent  of  the  Right  of  De- 
ceased and  Others. — A  dependent's  claim  to  compensation  arises 
upon  the  death  of  the  workman,  and  is  independent  of  the  claim 
to  compensation  by  the  workman.7-'1  A  settlement  by  the  employer 

73.  State    ex  rel.    Varchmin    v.    District    Court    of    Ramsey    Co.,    133 
Minn.  265,  158  N.  W.  250,  13  N.  C.  C.  A.  277. 

74.  Curtis  v.  Slater  Const.  Co..  202  Mich.  673.  168  N.  W.  958,  2  W.  C. 
L.  J.    909 ;  Giggndelle  v.   Piedmont  and  Georges  Creek   Coal  Co.,  — .  Md . 
App.— ,  (1920),  111  Atl.  135,  6  W.  C.  L.  J.  535 .• 

75.  Nesland  v.  Eddy,  131  Minn.  62,  154  N.  W.  661.     This  case  finds 
support  in  Anderson  v.  Fielding,  92  Minn.  42,  99  N.  W.  357,  104  Am.  St. 
Rep.  665;  Michigan  Central  R.  Co.  v.  Vreeland.  227  U.  S.  59.  33  Sup.  Ct. 
192,  57  L.  Ed.  417,  Ann.  Cas.  1914C,  176;    American  R.  Co.  v.  Didrickaen. 
227  U.  S.  145.  33  Sup.  Ct.  224,  57  L.  Ed.  456. 

971 


§  379  WORKMEN'S  COMPENSATION  LAW 

with  the  workman  does  not  bar  the  dependent's  right  to  compen- 
sation.76 Nor  does  a  release  by  the  workman  bar  dependents  right 
to  compensation.77  A  release  by  the  widow  will  not  bar  the  claim 
of  the  personal  representative  for  the  benefit  of  minor  children.78 
Financial  benefits  accruing  to  dependents  upon  the  death  of  a 
workman  will  not  affect  the  right  to  compensation.79. 

The  fact  that  an  employee  received  compensation  for  a  brief 
period  before  his  death  does  not  relieve  the  insurer  of  the  statutory 
requirement  of  the  New  York  Act  to  "pay  to  the  state  treasurer 
for  every  case  of  injury  causing  death  in  which  there  are  110  per- 
sons entitled  to  compensation  the  sum  of  $100.00."  In  case  of 
death  the  decedent  would  not  be  a  person  entitled  to  compensa- 
tion.80 

In  holding  that  a  mother  could  institute  proceedings  to  recover 
compensation,  despite  the  fact  that  the  widow  elected  to  sue  a 
third  person,  and  while  such  suit  was  pending,  the  court  said: 
"If  in  the  instant  case  the  widow  succeeds  in  her  action  against 
the  third  party,  her  success  will  inure  to  the  benefit  of  the  in- 
surer so  far  as  she  and  those  represented  by  her  action  against 
the  third  party  are  concerned.  But,  whether  she  succeeds  or  fails, 
the  result  will  be  the  same  to  the  insurer,  so  far  as  the  dependent 
mother  is  concerned.  Within  the  limitations  of  said  section  16, 
subdivision  4,  the  liability  of  the  insurer  to  the  mother  is  entirely 
independent  of  the  claim  of  the  widow,  and  will  remain  the  same 
independently  of  the  result  of  the  action  instituted  by  her  against 

76.  King  v.  Viscoloid  Co.,   219  Mass.  420,  106  N.  E.  988;    Williams  v. 
Vauxhall   Colliery   Co.   Ltd.,    (1908),   9   W.   C.   C.   120   C.  A.;     Howell  v. 
Bradford  &  Co.,   (1911),  4  B.  W.  C.  C.  203  C.  A. 

77.  In  re  Cripp,  216  Mass.  586,  104  N.  E.  565  Ann.  Cas.    1915B,  828. 

78.  West  Jersey  Trust  Co.  v.  Phil.  &  Read.  R.  R.  Co.,  88  N.  J.  L.  102, 
95  Atl.  753;  Satterfield  v.  Wahlquist,  —  Penn.  — ,  111  Atl.  253,  6  W.  C.  L. 
J.  579. 

79.  State  ex  rel.  Crookston  Lbr.  Co.  v.  District  Ct.,  131  Minn.  27,  154 
N.  W.  509;    Pryce   v.  Penrikyber    Nav.  Colliery   Co.,    (1902),  4   W.  C.  C. 
115,  C.  A. 

80.  Stempfler  v.  J.  Rheinfrank  &  Co.,  190  App.  Div.  163,  179  N.  Y.  S. 
659,    (1919),   5  W.  C.  L.  J.  573;     Milwaukee   Coke  &   Gas.   Co.  v.  Indus. 
Comm.,  160  Wis.  247,  151   N.  W.  245,  9  N.  C.  C.  A.  597;    In  re  Nicholas, 
104  N.  E.  566,  217   Mass.  3,  4  N.  C.  C.  A.  546. 

972 


DEPENDENCY.  §   380 

the  third  party.  The  aim  unit  uf  the  payment  to  the  dependent 
mother  can  be  fixed  definitely  ,-md  accurately,  and  in  no  respect 
depends  on  either  the  fact  or  the  amount  of  the  recovery  in  the 
action  of  the  widow  against  the  third  party."81 

Money  paid  to  an  employee  under  a  voluntary  agreement  be- 
tween the  employee  and  employer,  cannot  be  deducted  from  a 
death  benefit,  for  such  payment  does  not  come  within  the  scope 
of  the  statute  allowing  advancements  to  be  deducted.82 

§  380.  Death  of  Beneficiaries  or  of  an  Employee  Before  the 
Period  for  Which  an  Award  Has  Been  Made  Has  Elapsed.— 

Some  acts  expressly  provide  for  termination  of  payments  on  the 
death  of  the  beneficiary  or  upon  contingencies,  such  as  remarriage 
of  a  dependent  widow  or  widower  or  cessation  of  dependency, 
other  acts  are  so  construed.93  A  few  states  provide  that  upon 
death  or  remarriage  of  a  dependent  widow  or  widower  during  the 
term  of  benefit  payments,  subsequent  payments  shall  go  to  other 
dependents,  if  any,84  while  other  acts  are  construed  or  expressly 
provide  that  upon  the  death  of  dependents  the  right  to  compensa- 
tion which  is  a  vested  right  passes  to  the  executor  or  administra- 
tor.85 But  in  the  absence  of  some  provision  vesting  in  some 

81.  In  re  Cahill,  159  N.  Y.  Supp.  1060,  16  N.  C.  C.  A.  181. 

82.  Jackson  v.  Berlin  Const.  Co.,  93  Conn.  155,  105  Atl.  326,  3'W.C.- 
L.J.    224. 

83.  In   re   Murphy,  224  Mass.  592,   113  N.  E.  283.  13  N.  C.  C.  A.  717; 
Ledforcl    v.  Caspar    Lbr.  Co.,  2    Cal.  I.   A.  C.    679,  13   N.  C.    C.  A.    723; 
Corcoran    v.  Farrel     Fdry.  Co.,    1  Conn.  C.  D.  42,    13    N.  C.  C.  A.  721; 
Lahoma  Oil  Co.  v.  Indus.  Comm.,  —   Okla.  — ,  175  Pac.   836.    The  Illi- 
nois act  as  amended  in  1919  provides  that  compensation  is  extinguished 
by  death  if  there  are  no  dependents. 

84.  Matecny  v.   Vierling  Steel    Wks.,  187  111.  App.  448,  13   N.  C.  C,  A. 
715;  Hughes  v.   L.  P.  Degen  Belting  Co.,  2   Cal.  I.  A.  C.  569,   13  N.  C.  C. 
A.  729;    Judson  v.  Andrews  &  Peck  Co.,  1  Conn.  C.  D.  54.  13  N.  C.  C.  A. 
731;     In  re    Bartoni,  225  Mass.   349,  114  N.  E.    663;    McNlcols   Case,  215 
Mass.  497. 

85.  United  Collieries  Ltd.  v.  Simpson  or  Hendry,    (1909),  A.  C.  383. 
6   N.  C.  C.  A.   287;   Darlington  v.  Roscoe  &    Sons,   (1907),    1    K.  B.  219, 
9  W.  C.  C.  1;   State  ex  rel.  Munding  v.  Indus.  Comm.  of  Ohio.  92   Ohio 
St.  434,  111  N.  E.  299,  13  N.  C.  C.  A.  713;  Swift  &  Co..  v.  Indus.  Comm, 

973 


§  380  WORKMEN'S  COMPENSATION  LAW 

survivor  the  right  to  compensation  payments,  the  general  rule  is 
that  the  death  terminates  the  compensation.86  And  the  personal 
representative  is  entitled  only  to  the  amount  of  compensation  lue 
at  the  time  of  the  death  of  the  injured  employee.87 

Where  a  widow,  who  was  wholly  dependent  upon  and  the  sole 
dependent  of  the  deceased,  died  before  compensation  was  made, 
and  the  administrator  of  deceased's  estate  sued  for  compensation, 
the  court  held  "The  action  was  prosecuted  by  the  right  party," 
and  that  "the  right  to  full  amount  of  compensation  allowed  by 
suddivision  1,  of  sec.  5905,  of  the  general  statutes  of  Kansas,  1915, 
vested  on  the  death  of  the  workman,  and  was  recoverable,  not- 
withstanding the  provision  of  subdivision  4  relating  to  discon- 
tinuance of  compensation  on  marriage  of  a  dependent  and  on  arriv- 
al of  a  dependent  at  the  age  of  independency. ' ' 88 

An  award  made  payable  to  the  deceased's  widow  and  in  case  of 
her  death  to  the  dependent  children  was  held  proper  in  a  case 
where  the  children  were  equally  dependent  with  the  widow.89 

In  a  Massachusetts  case  the  court  said  that  the  decree  of  award 
to  the  widow  of  the  deceased  servant  should  contain  a  clause  stating 

288  111.  132,  123  N.  E.  267,  4  W.  C.  L.  J.  163;  Wangler  Boiler  &  Sheat 
Metal  Works  v.  Indus.  Comm.,  287  111.  118,  122  N.  E.  366;  Hansen  v. 
Braun  &  Stewart  Co.,  90  N.  J.  L.  444,  103  Atl.  696;  Friedman  Mfg.  Co. 
v.  Indus.  Comm.,  284  111.  554,  120  N.  E.  460;  In  re  Towle,  Op.  Sol.  Dep. 
C.  &  L.  565. 

86.  Ray  v.  Industrial  Ins.  Comm.,  — Wash.  — ,  168  Pac.  1121;  Wozneak 
v.  Buffalo  Gas    Co.,  175  App.  Div.   268,   161   N.   Y.  Supp.  675;    Lahoma 
Oil  Co.    y.     Indus.  Comm.    of  Okla.,  —  Okla.    — ,  175  Pae.   836;    U.  S. 
Fidelity   Guaranty  Co.  v.    Salser,  —   Tex.  Civ.   App.  — ,    224,  S.  W.    557, 
6  W.  C.  L.  J.  717. 

87.  In  re  Nichols,  —  Mass.  — ,   104  N.  E.  566;      In  re  Bartoni,  114  N. 
E.  663,  225  Mass.  349;  In  re  Murphy,  —  Mass.  — ,  113  N.  E.   283;  In  re 
Burns,  218  Mass.  8,  105  N.  E.  601,  5  N.  C.  C.  A.   635;    Erie  Ry.  Co.  v. 
Gallaway,  —  N.  J.  — ,  102  Atl.  6;  Jackson  v  .Berlin  Construction  Co.,  - 
Conn.  — ,  105,  Atl.  326;  Poccardi  v.  Ott,  —  W.  Va.  — ,  104  S.  E.  54,  6  W. 
C.  L.  J.  721;   East  St.    Louis    Board  of    Education  v.  Indus.    Comm.,    - 
111.  — ,  (1921),  131  N.  E.  123. 

88.  Smith  v.  Kaw  Boiler  Works,   104  Kan.  591,   180   Pac.   259,    4  W. 
C.  L.  J.  87. 

89.  Zoldatz  v.  Detroit   Auto  Specialty  Co.,  --    Mich.    — ,   (1919),    172 
N.  W.  549,  4  W.  C.  L.  J.  259. 

974 


I)I:IM:M>I-:NCY.  §  380 

in  express  terms  that  in  case  of  death  of  the  dependent  before  the 
expiration  of  the  period  of  payment  the  weekly  payments  are  to 
cease,  but  the  payments  do  cease  regardless  of  the  omission  of 
such  clause.00 

"Where  a  deceased  employee's  dependents  were  two  minor  chil- 
dren, and  one  of  the  children  died  after  the  father's  death  but 
before  an  award  was  made,  and  an  award  by  the  industrial  com- 
mission, ordering  the  share  of  the  deceased  child  to  be  paid  to  the 
administrator  of  the  deceased  employee  was  upheld  because  the 
court  held  that  an  insurer  cannot  litigate  by  appeal  the  propor- 
tions of  the  division  of  a  payment  among  those  claiming  to  be 
dependent  upon  the  deceased  employee,  when  the  dependents  are 
satisfied,  and  do  not  appeal  and  the  insurer  cannot,  by  any  possi- 
bility, affect  its  pecuniary  responsibility.91 

Subsequent  insanity  does  not  deprive  an  employee  of  compensa- 
tion due  him.98 

Under  the  Colorado  statute  distributing  lapsed  awards  and  a 
subsection  of  the  statute  which  limits  the  amount  of  an  award 
to  nonresidents  to  one  third  of  the  amount  allowed  to  resident 
dependents,  but  not  to  exceed  $1000,  an  award  of  $2.500  for 
.and  employee's  death  was  apportioned  so  that  a  dependent  son,  a 
i-f-ident,  was  awarded  one  third,  and  the  widow  and  daughter, 
nonresident  dependents,  were  awarded  jointly  one  third  of  tin- 
remainder.  Upon  the  lasping  of  the  son's  share  at  his  death,  and 
the  widow's  stare  upon  her  remarriage  the  daughter  was  entitled  to 
an  award  of  $1000  less  the  original  award  to  her,  and  she  was  not 
limited  to  one  third  of  the  unpaid  sum.98 

90.  In  re    Derinza,    229  Mass.  435,  118    N.  E.  942.  1  W.  C.  L.  J.  795. 
16  N.  C.  C.  A.  87;  In  re  Bartoni,  225  Mass.  349,  L.  R.  A.  1917E,  765,  114 
N.  E.  663,  16   N.  C.  C.  A.  88. 

91.  In   re  Janes,  217   Mass.  192,  4   N.  C.  C.  A.  552,   13    N.   C.    C.  A. 
720. 

92.  In   re  Walsh,  —  Mass.  — ,  116  N.  E.  496.  15    N.  C.  C.  A.  345.   In 
re  Colon,  M.  Linton,  3rd  A.  R.  U.  S.  C.  C.  131;  WV.rd  v.  Heth  Bros.,  - 
Mich.  — ,  (1920),  180  N.  W.  245. 

93.  Indus.  Comm.  of  Colo.  v.  Colo.  Fuel  &  Iron  Co.  —  Colo.  — ,  1921, 
195  Pac.  114. 

975 


§  380  WORKMEN'S  COMPENSATION  LAW 

Where  an  employee  recovered  a  lump  sum  judgment  and  upon 
his  death,  before  satisfaction,  in  holding  that  it  might  be  revived 
in  the  name  of  the  administrator,  the  court  said:  ''The  argument 
against,  the  revivor  being  allowed  in  the  name  of  the  administratrix 
is  based  upon  the  contention  that : 

"Under  the  compensation  law,  the  right  to  compensation  and 
any  judgment  for  compensation  abates  upon  the  death  of  the  em- 
ployee, and  does  not  survive  to  his  heirs  or  representatives. 

"In  support  of  this  contention  it  is  argued  that  compensation, 
where*  death  results  from  an  injury  to  a  workman,  is  allowed  only 
to  his  dependents,  and  therefore  his  heirs  as  such,  or  his  executor 
or  administrator,  have  nothing  to  do  with  it.  That  situation,  how- 
ever, is  obviously  not  fully  analogous  to  the  one  here  presented, 
where  a  judgment  was  rendered  in  favor  of  the  workman.  It  has 
been  held  that  a  judgment  under  the  Compensation  Act  providing 
for  periodical  payments  to  an  injured  workman,  although  subject 
to  commutation,  does  not  survive  the  plaintiff's  death,  Wozneak 
v.  Buffalo  Gas  Co.,  175  App.  Div.  268,  161  N.  Y.  Supp.  675. 

' '  In  the  case  cited  the  trial  court  had  decided  to  the  contrary,  and 
two  of  the  five  appellate  judges  dissented  from  the  reversal.  That 
decision,  however,  if  accepted  as  sound,  would  not  control  here.- 
In  the  present  case  the  plaintiff  had  obtained  an  absolute  personal 
judgment  requiring  the  immediate  payment  of  a  fixed  amount.  It 
was  the  legal  duty  of  the  defendant  to  pay  it  at  once,  unless  a 
stay  should  be  procured  pending  an  appeal.  If  payment  had  been 
made,  the  money  would  have  been  wholly  at  the  disposal  of  the 
plaintiff.  If  the  final  result  is  an  affirmance,  it  will  amount  to  an 
adjudication  that  the  rights  of  the  parties  shall  remain  as  fixed 
at  the  time  the  judgment  was  rendered.  The  defendant  gains  no 
immunity  from  the  fact  of  his  having  taken  an  appeal  which  is 
ultimately  determined  not  to  have  been  well  founded. 

"The  final  argument  against  the  right  of  revivor  is  that  because 
the  judgment  is  not  assignable  it  does  not  survive  the  death  of 
the  plaintiff.  It  is  true  that,  as  a  rule,  causes  of  action  which  are 
not  assignable  do  not  survive.  1  C.  J.  175,  176.  But  a  judgment 
based  on  a  nonsuryiving  cause  of  action  ordinarily  does  survive 
(1  C.  J.  169),  and  does  so  in  this  state  notwithstanding  the  penden- 
976 


DEPENDENCY.  §   382 

cy  of  an  appeal  (Powers  v.  Sumbler,  83  Kan.  1,  110  Pac.  97). 
Moreover,  while  as  a  rule  causes  of  action  which  are  not  assignable 
do  not  survive,  this  is  liccause  of  qualities  that  inhere  in  the  nature 
of  the  right.  Where  the  statute  for  some  special  purpose,  as  the 
protection  of  a  claimant  against  improvidence,  forhids  assignment, 
nonsurvivability  does  not  necessarily  result  therefrom.  The  new 
government  war  savings  certificates  are  expressly  made  not  trans- 
ferable, but  it  will  hardly  be  doubted  that  the  title  would  , 
to  the  heirs  or  personal  representatives  of  the  owners  upon  his 
death.  We  hold  that  if  the  assignment  was  invalid  the  revivor  was 
properly  made  in  the  name  of  the  administratrix."84 

§  381.  Absence  of  Dependents. — Under  sec.  15,  sub'd.  7,  of  the 
New  York  Workmen's  Compensation  Law,  the  insurance  car- 
rier may  pay  the  state  treasurer  $100.00  where  the  injury  results 
in  the  death  of  an  employee  who  is  without  surviving  depend- 
ents, though  the  employee  himself  before  death  received  compen- 
sation for  a  brief  period;  for  in  case  of  death,  he  would  not  be 
a  person  entitled  to  compensation.05 

The  State  alone  can  object  to  the  failure  of  the  court  to  award 
$750.00  to  the  state  treasurer,  in  case  of  a  finding  that  there  were 
no  dependents  of  the  deceased  workman,  under  the  Connecticut 
Act.08 

§  382.  Inheriting  from  Estate  of  Deceased  or  Receiving  Bene- 
fits from  Other  Sources. — As  the  question  of  dependency  is  to  be 
determined  as  of  the  time  of  the  injury  or  death  of  deceased, 
money  or  other  property  coming  to  the  claimant  from  the  deceas- 
ed's estate  has  no  bearing  upon  the  question.07 

94.  Monson  v.  Baltelle,  —  Kan.  — .  170  Pac.  801,  1  W.  C.  L.  J.  770. 

95.  Stempfler  v.  J.  Rheinfrank  &  Co.,  190  App.  Div.  163,  179  N.  Y.  8. 
659,  (1919),  5  W.  C.  L.  J.  573. 

96.  Blanton  v.  Wheeler  &  Howes  Co..  91  Conn.  226,  99  Atl.  494. 

97.  State  ex  rel.  v.  District  Court  of  Beltrami  County,  131  Minn.  27,  13 
N.  C.  C.  A.  555;  Pryce  v.  Penrikyber  Navigation  Col.  Co.,  (1902),  1  K.  B. 
221,  4  W.  C.  C.  115.  85  L.  T.  477,  71  L.  J.  K.  B.  192,  50  W.  R.  197,  66  J. 
P.    198,  6  N.  C.  C.  A.  272;  Kenney's  Case,  222  Mass.  401.  tit  X.  E.  47. 

977 
W.  C.— 62 


§  382  WORKMEN'S  COMPENSATION  LAW 

The  fact  that  a  mother  had  made  a  will  in  favor  of  her  de- 
ceased son,  who  had  contributed  to  her  support,  is  not  material 
in  determining  her  claim  to  the  benefit  provided  by  the  act,  in 
the  absence  of  evidence  that  the  will  was  the  result  of  an  agree- 
ment.98 

Where  a  son  contributed  to  the  support  of  his  parents  within 
four  years  it  is  immaterial  under  the  Illinois  Act  that  the  parents 
were  not  dependent  upon  him." 

Dependency  of  a  girl  upon  her  grandfather  for  whose  death 
she  claimed  compensation,  being  determinable  by  the  conditions 
which  existed  at  the  time  of  the  accident,  would  not  be  affected 
by  the  fact  that,  at  the  time  of  the  hearing,  she  was  earning  some 
wages,  or  that  the  mother  as  a  matter  of  spite  to  the  grandmother, 
was  offering  to  take  care  of  her.1 

The  fact  that  a  mother  had  $300.00  or  $400.00  in  a  bank  draw- 
ing 4%  interest,  does  not  bar  her  of  a  right  under  the  "Workmen's 
Compensation  Act.2 

The  Supreme  Court  of  Kansas  has  held  that  the  fact  that  the 
parents  of  deceased  had  ample  property  and  income  to  sustain 
them,  if  properly  used,  was  immaterial,  if  they  actually  depended 
upon  the  son's  contributions  to  maintain  them  in  the  manner  of 
living  they  had  chosen.3 

"In  determining  compensation  under  the  statute  it  is  immate- 
rial whether  the  claimant  inherited  anything  from  the  estate  of 
the  employee.  Under  the  General  Statute  of  Minnesota,  1913, 
Sec.  8208,  the  minimum  compensation  to  a  person  wholly  depend- 
ent on  the  deceased  employee  is  $6.00  a  week  for  300  weeks."4 

98.  Miss.  River  Power  Co.  v.  Indus.  Comm.,  289  111.  353,  124  N.  E.  552, 
5  W.  C.  L.  J.  50. 

99.  Humphrey  v.  Indus.  Comm.,  285  111.  372,  120  N.  E.  816,  3  W.  C.  L. 
J.  102. 

1.  In  re  Yeople,  In  re  John  B.  Rose  Co.,  In  re  Travelers'  Ins.  Co.,  182 
App.  Div.  438,  169  N.  Y.  S.  584,  1  W.  C.  L.  J.  1135,  16  N.  C.  C.  A.  148. 

2.  Parson  v.  Murphy,  101  Neb.  542,  163  N.  W.  847,  16  N.  C.  C.  A.  174. 

3.  Fennimore  v.   Pittsburg-Scammon  Coal  Co.,    100  Kan.  372,  164  Pac. 
265,  16  N.  C.  C.  A.  176. 

4.  State  ex  rel.  Crookston  Lbr.  Co.  v.  District  Court  of  j3eltrami  Co., 
131  Minn.  27,  13  N.  C.  C.  A.  555,  154  N.  W.  509. 

978 


DEPENDENCY.  §   383 

Mere  gratuituous  pittances-given  by  a  sister  and  an  aunt  are 
not  sufficient  to  deprive  a  mother  and  sister,  otherwise  totally 
dependent  upon  deceased,  of  an  award  for  total  dependency.5 

Wher«  the  parents  were  receiving  a  pension  in  addition  to  the 
son's  contributions,  a  finding  of  partial  dependency  was  in  ac- 
cordance with  the  facts  in  the  case." 

The  fact  that  the  dependents  draw  benefits  from  a  fireman '> 
relief  association,  does  not  affect  their  right  to  the  full  amount 
of  compensation  under  the  Minnesota  Act.7 

Section  204  of  the  Pennsylvania  Act  reads:  "  IiVreipt  of  benefit* 
from  any  association,  society,  or  fund  shall  not  bar  the  recovery  of 
damages,  by  action  at  law,  nor  the  recovery  of  compensation  un- 
der article  3  hereof,  and  any  release  given  in  consideration  of 
such  benefits  shall  be  void."8  . 

§  383.  Claim  for  Compensation  by  Personal  Representative  or 
Administrator. — Under  the  Illinois  Workmen's  Compensation  Act. 
Sec.  19,  it  is  not  necessary  that  the  executor  or  administrator  of 
a  servant,  killed  in  the  course  of  his  employment,  file  a  claim  for 
compensation,  but  it  is  sufficient  if  the  petition  is  filed  by  the 
parties  entitled  to  compensation.0 

Where  a  widow,  who  was  wholly  dependent  upon  and  the  sole 
dependent  of  deceased,  died  and  the  administrator  of  the  estate  of 
the  deceased  workman  sued  for  compensation,  the  court  in  con- 
struing the  Kansas  Act  held  that,  the  action  was  prosecuted  by  the 
proper  party,  and  that  the  right  to  the  full  amount  of  corapensa- 

5.  Petrozino  v.  Amer.  Mut.  Liab.  Asso.,  219  Mass.  498,  107  N.  E    37U, 
9  N.  C.  C.  A.  594. 

6.  Binkley   v.   Western   Pipe  &  S.    Co.,  (Cal.).  I.    A.  C.  1    Nat.  Comp. 
Jour.,  (1914),  6   N.  C.  C.  A.  272;     Johnson  v.  Mountain  Commercial  Co., 

1  Cal.  I.  A.  C.  D.   (1914),  11,  6  N.  0.  C.  A.  272;   Ress  v.  Youngstowa 
Sheet  &  Tube  Co.,  Ohio  Ind.  Com.,  (1914),  6  N.  C.  C.  A.  £73. 

7.  State  ex  rel.  City  of  Duluth  v.  District  Court  of  St.  Louis  Co.,  134 
Minn.    26,  158  N.  W.  791. 

8.  Decker  v.  Mohawk  Min.  Co.,  265  Pa.  507,  109  Atl.  275.  5  \V .  C.  L. 
J.  889. 

9.  Mississippi   River  Power  Co.  v.  Indus.  Comm.,  289  111.  353.  124  N. 
E.  552,  5  W.  C.  L.  J.  50. 

979 


§  383  WORKMEN'S  COMPENSATION  LAW 

tion  allowed  by  subdivision  1,  of  section  5905,  General  Statutes  of 
1915,  vested  on  the  death  of  the  workman,  and  was  recoverable, 
notwithstanding  the  provision  of  subdivision  4  relating  to  dis- 
continuance of  compensation  on  marriage  of  a  dependent  and  on 
arrival  of  a  dependent  at  the  age  of  independency. ' ' 10 

In  proceedings  for  compensation  under  the  Massachusetts  Work- 
men's Compensation  Act,  it  has  been  said:  "The  administrator 
of  the  widow  of  a  deceased  employee  is  entitled  to  the  weekly  pay- 
ment provided  by  part  2,  section  6,  of  the  act,  'from  the  date  of 
the  injury'  until  the  time  of  the  decease  of  the  widow.  In  this 
connection  it  is  of  no  consequence  that  the  widow  deceased  before 
any  payment  wtis  made  to  her.  No  compensation  had  been  paid 
to  her  because  of  pending  negotiations  as  to  settlement  for  a  lump 
sum.  She  was  herself  conclusively  presumed  to  be  dependent  upon 
the  employee,  and  the  obligation  rested  strongly  on  her  to  support 
their  minor  children."  X1 

Under  the  New  Jers,ey  Workmen's  Compensation  Act,  the  pro- 
ceedings for  compensation  should  be  brought  by  the  executor  or 
administrator,  and  in  the  absence  of  such  persons  then  the  person 
entitled  to  administration.12 

Where  the  father  of  a  deceased  employee  lived  in  Austria,  and 
instituted  proceedings  by  an  attorney  in  fact,  who  bore  no  rela- 
tion to  the  parent,  and  who  acted  upon  the  authority  of  an  un- 
anthenticated  letter  received  by  him  from  the  father,  the  court 
held  that  this  letter  constituted  no  legal  authority  for  his  action 
taken  in  filing  the  application.13 

The  administrator  of  a  deceased  employee  has  a  right  to  prose- 
cute an  application  for  compensation  and  collect  any  award  made. 

10.  Smith  v.  Kaw  Boiler  Works,  104  Kan.   591,  (1919),  180  Pac.  259,  4 
W.  C.  L.  J.  87. 

11.  Coakley's   Case,  216  Mass.  71,  102  N.  E.  930,  Ann.  Gas.  1915A  867; 
In  re  Bartoni,  225  Mass.  349,  L.  R.  A.  1917E   765,  114  N.  E.  663,  (1916), 
16  N.  C.  C.  A.  88. 

12.  Connors  v.  Public  Service  Electric  Co.,  89  N.  J.  L.  99,  97  Atl.  79.J. 
16  N,  C.   C.  A.  802;  Coster  v.    Thompson  Hotel  Co.,   102  Neb.  585,  168  N. 
\V.  191,  16  N.  C.  C.  A.  803. 

13.  Western  Indemnity  Co.  v.  Indus.  Comm.  of  Cal.,  35  Cal.  App.  104, 
169  Pac.  261,  16  N.  C.  C.  A.  804. 

980 


DEPENDENCY.  §    383 

The  employer  is  protected  by  the  statutory  requirement  that  the 
administrator  shall  relieve  the  employer  of  all  obligation  as  to 
distribution  of  the  award.14 

Where  a  deceased  employee  has  accepted  the  provisions  of  the 
compensation  act,  his  personal  representative  cannot  maintain  ;m 
action  under  the  death  act  for  damages  for  his  death,  even  though 
the  only  dependents  left  surviving  him  were  aliens  not  residents 
of  the  United  States." 

Where  the  dependent  of  a  deceased  workman  dies  without  mak- 
ing a  claim,  the  legal  personal  representative  of  the  dependent  is 
entitled  to  compensation  unless  the  act  expressly  otherwise  pro- 
vides.10 

So  where  a  deceased  workman  left  two  minor  children,  and  one 
of  them  died  before  the  award  was  made,  the  share  of  the  deceased 
child  was  ordered  paid  to  his  administrator.17 

On  the  other  hand,  the  administrator  of  a  dependent  mother's 
estate  is  not  entitled  to  the  remainder  of  the  payments  upon  the 
death  of  the  mother,  who  was  the  sole  dependent.  The  payments 
terminate.18 

Under  the  Ohio  Act,  an  award  to  a  dependent  is  a  vested  right, 
and  upon  the  death  of  the  dependent  before  final  settlement  is 
made  the  personal  representative  is  entitled  to  the  balance  remain- 
ing unpaid.19 

Compensation  accruing  to  a  widow  between  the  employee's  death 
and  her  death  may  be  recovered  by  her  personal  representative  a* 

14.  G.  H.  Hammond  Co.  v.  Indus.  Comm.,  288  111.  262,  123  N.  E.  384, 
4  W.  C.  L.  J.  176. 

15.  Gregutis  v.   Waclark  Wire   Works,  86  N.  J.  L.  610,    92  Atl.  354,  9 
N.  C.  C.  A.  594. 

16.  United  Collieries  Lira.  v.  Simpson,  78  L.  J.  P.  C.  129,  (1909),  A.  C. 
383,  101  L.  T.  129,  25,  T.  L.  R.  678,  53  Sol.  Jo.  630,  (1909),  8.  C.  (H.  L. ) 
19,  40  Sc.  L.  R.  780,  (1909),  S.  L.  T.  47,  2  B.  W.  C.  C.  308,  6  N.  C.  C.  A. 
2S7;      Darlirgton  v.   Roscoe  &   Sons,  76   L.  J.  K.  B.  371.    (1907),  1  K.  H. 
219,  96  L.  T.  179,   23    T.  L.  R.   167,  61  Sol.  Jo.    130,  9    W.  C.  C.  1,  6  N. 
C.    C.  A.  287. 

17.  In  re  Janes,  217  Mass.  192,  104  N.  E.  556,  4  N.  C.  C.  A.  552. 

18.  Matecny  v.  Vierling  Steel  Works,  187  111.  App.  448,  6  N.  C.  C.  A. 
287. 

19.  State  v.  Indus.  Comm.,  92  Ohio  St.  434,  111  N.  E.  299. 

981 


§  384  WORKMEN'S  COMPENSATION  LAW 

part  of  her  estate,  and  does  not  under  the  Federal  Act  accrue  to 
their  children  as  beneficiaries.20 

Whore  compensation  is  awarded  to  an  administrator  in  a  pro- 
ceeding on  behalf  of  the  dependents,  the  distribution  is  to  be  made 
by  him  pursuant  to  the  orders  of  the  court  which  appointed  him. 
Either  an  administrator,  a  beneficiary,  or  an  employer  may  file  a 
petition  for  the  adjustment  of  a  claim  under  the  'Illinois  Act.21 

§  384.  Dependent  of  More  Than  One  Workman. — One  person 
may  be  dependent  uj-on  more  than  one  workman,  and  where  a 
mother  was  dependent  upon  her  husband  and  two  sons,  who  were  all 
killed  at  once,  in  a  mine  disaster,  the  rule  laid  down  was  that  a 
dependent  of  more  than  one  workman  may  recover  more  than  one 
maximum  amount  allowed  for  the  death  of  one  workman.22 

In  construing  the  Pennsylvania  Act  on  this  point  the  Supreme 
court  of  that  state  said:  "May  children  who  are  now  receiving 
compensation  for  the  death  of  their  natural  father  receive  addi- 
tional and  concurrent  compensation  through  the  death  of  their 
stepfather  ?  The  Legislature  has  authority  to  determine  the  various 
classes  of  persons  who  are  entitled  to  compensation,  as  dependents, 
upon  the  injury  or  death  of  an  employee,  and  the  amount  to  bej 
paid  such  dependents.  When  it  has  so  determined,  the  courts 
cannot  change  or  amend  either  the  classifications  or  the  amount 
to  be  paid.  In  Section  307  of  the  Workmen's  Compensation  Act 
(Acts  1915,  p.  736):  'The  terms  "child"  and  "children"  shall 
include  stepchildren  and  adopted  children,  and  children  to  whom 
the  employee  stood  in  loco  parentis,  if  members  of  the  decedent's 
household  at  the  time  of  his  death.'  The  referee  finds  that  dece- 
dent not  only  stood  in  loco  parentis  to  these  children,  who  were 
members  of  his  household  at  the  time  of  his  death,  but  that  they 
were  also  dependent  upon  him.  This  conclusion  would  seem  to  fix 

20.  In  re  Towle,  Op.  Sol.  Dept.  C.   &  L.   565. 

21.  National    Zinc  Co.  v.    Indus.  Comm.,    292  111.  598,    127  N.  E.    135,  6 
W.  C.  L.  J.  21. 

22.  Hodgson  v.  Owners  of  West  Stanley  Colliery,  (1910),  102  L.  T.  194, 
A.  C.  (H.  L.)  229,  3  B.  W.  C.  C.  260,  6  N.  C.  C.  A.  267;  McLean  v.  Moss 
Bay  H.  I.  &  S.  Co.,  Ltd.,  (1910),  A.  C.  229,  3  B.  W.  C.  C.  402. 

982 


DEPENDENCY.  §    386 

their  right  to  compensation  through  the  stepfather  "\Ye  find 
nothing  in  the  act  that  prohibits  this  dual  compensation.  More- 
over, it  would  seem  to  be  expressly  permitted.  Section  204  reads: 
That  'the  receipt  of  benefits  from  any  association,  society,  or  fund 
shall  not  bar  the  recovery  of  damages  by  action  at  law,  rior  the 
recovery  of  compensation  under  article  three  hereof;  and  any 
release  executed  in  consideration  of  such  benefits  shall  be  void.'  ''  -3 

§  385.  Submitting  to  Operation. — Before  compensation  can  be 
denied  to  a  dependent,  suffering  from  physicial  disability,  for  a 
period  in  excess  of  that  reasonably  required  to  effect  a  cure,  be- 
cause of  his  refusal  to  submit  to  a  surgical  operation  for  hernia, 
there  must  be  an  explicit  finding  of  the  probable  favorable  result 
of  such  an  operation,  if  performed,  and  an  unreasonable  refusal 
to  submit  thereto.  A  finding  that  the  claimant's  condition  "called 
for  and  now  calls  for  an  operation,"  is  insufficient  to  justify  such 
a  denial.24 

§  386.  Estopped  to  Dispute  Claim  of  Dependents  After  De- 
ceased's Death. — An  insurer  cannot  be  heard  to  claim  that  the 
award  \vas  to  the  deceased  as  sole  dependent  of  the  deceased  em- 
ployee, where  the  employer  and  insurer  assumed  before  the  arbi- 
tration committee  that  the  claim  of  the  deceased  servant's  father 
was  made  upon  behalf  of  himself  and  family,  and  the  award  should 
be  modified  to  include  the  widow  and  minor  children  upon  petition 
tiled  after  the  father's  death." 

Where  an  employer  has  paid  compensation  up  to  the  time  of 
the  death  of  a  workman  under  a  registered  agreement,  he  is  not 
estopped  to  dispute  the  cause  of  the  workmen's  death  or  show  that 
it  did  not  result  from  the  injury.-'0 

23.  Decker  v.    Mohawk  Mining  Co.,    265  Pa.  507,  1920,  109   All.  275,  5 
W.  C.  L.  J.  889. 

24.  Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  All.  1025,  13  N. 
C.  C.  A.  315. 

Note:    See  §  490  post. 

25.  Byle  v.  Grand  Rapids  Blowpipe  &  Dust  Arrester  Co.,  —  Mich.  — , 
(1920),  175  N.  W.  416,  5  W.  C.  L.  J.  402. 

26.  Cleverley  &  Others  v.  Gas  Light  &  Coke  Co.,  1  B.  W.  C.  C.  82. 

983 


§  388  WORKMEN'S  COMPENSATION  LAW 

§  387.    Necessity  of  Administering  Upon  Estate  of  Workman. 

—The  taking  out  of  letters  of  administration  on  the  estate  of  a 
deceased  workman  is  not  necessary  under  the  British  Act,  on  the 
part  of  one  claiming  as  a  dependent.27  In  the  United  States  many 
of  the  states  dispense  with  administration  as  to  workmen's  com- 
pensation death  benefits,  and  the  statutes  of  the  particular  state 
must  therefore  be  consulted. 

§  388.  Division  of  Compensation  Between  Dependents — 
Double  Compensation. — Under  the  Workmen's  Compensation 
Acts  a  number  of  persons  be'aring  different  relationship  to  the  de- 
ceased, may  be  concurrently  entitled  to  compensation  as  depend- 
ents. 

So  an  award  to  a  widow  does  not  preclude  an  award  to  minor 
children  of  decendent.28  And  a  father  partially  dependent  upon  his 
son  is  entitled  to  his  proportionate  share  of  the  death  benefit,  even 
though  the  deceased  son  left  a  totally  dependent  widow.29 

Where  a  deceased  workman  leaves  a  widow  and  minor  children, 
an  award  under  the  Pennsylvania  Act  should  be  made  in  favor  of 
the  children,  to  begin  after  the  award  to  the  widow  ceases,  and  to 
continue  until  each  of  the  children  reach  the  age  of  16  years.30 

An  apportionment  of  the  award  between  the  deceased's  widow, 
his  son  by  a  former  wife,  and  her  child  by  a  former  husband,  was 

X 

properly  apportioned  where  the  amount  due  his  son  was  paid  to  a 
guardian  and  the  amount  due  his  widow  and  her  child  was  paid  to 
the  widow. 31 

Assuming  that  a  wife1  living  apart  from  the  employee  is,  under 
the  California  Act,  conclusively  presumed  to  be  dependent  upon 

27.  Clatworthy  v.  R.  &  H.  Green,   (19"2),  86  L.  T.  702,  4  W.  C.  C.  152. 

28.  Catlin  v.   Pickett  &  Co.,   262   Pa.  351,   105   Atl.   503;     Wolford  v. 
Geisel   Moving  &  Storage    Co.,    262    Pa.  454,   (1919),  105  Atl.   831,  3  W. 
C.  L.   J.  798. 

29.  Penn  v.  Penn,  188   Ky.  228,  (1919),  209   S.  W.   53,  3  W.   C.   L    J. 
634. 

30.  Irvin  v.  Frost   &  Co.,  262    Pa.    354,   105  Atl.,  504,  3  W.   C.   L.   J. 
526;    Zoladtz    v.  Detroit  Auto  Specialty  Co.,   206   Mich.   349,    (1919),   172 
N.  W.    549;    Catlin  v.  Pickett,  261   Pa.  351,  105  Atl.  503. 

31.  Holmberg's  Case,  231  Mass.  144,   120  N.   E.    353,  2  W.   C.   L.   J. 
899. 

984 


DEPENDENCY.  §    388 

him  for  support,  still  where  there  were  also  children  dependent 
upon  him,  the  commission  had  power  to  award  the  compensation  in 
proportion  to  their  respective  needs,  and  in  such  manner  as  might 
be  just  and  equitable,  even  to  the  total  exclusion  of  the  wife.82 

Where  a  decease*!  leaves  two  daughters  dependent  upon  him,  an 
equal  division  of  the  death  benefit  is  proper,  where  the1  evidence 
tends  to  show  that  both  daughters  were  partially  dependent  upon 
the  contributions  of  the  father  to  the  family. 8S 

Where  the  deceased  left  a  widow  and  a  minor  son  dependent  up- 
on him,  and  by  the  terms  of  the  award  the  son  was  to  be  given  into 
the  custody  of  the  grandfather,  it  was  held  under  the  British  Act 
that  the  compensation  should  be  apportioned  between  the  depend- 
ents. " 

An  award  to  the1  mother  of  deceased  is  proper  under  the  Indiana 
Act,  even  though  brothers  and  sisters  of  the  deceased  were  support- 
ed out  of  the  common  fund ;  for  the  son  was  under  no  obligation  to 
support  his  brothers  and  sisters. 8S 

Where  an  award  was  made  under  the  Massachusetts  Act  to  par- 
ents jointly,  the  court,  in  reversing  the  award,  said:  "In  this  case 
the  board  made  no  finding  as  to  the  relative  extent  of  the  depend- 
ency; and  the1  difficulty  of  doing  so  is  apparent  where  the  contri- 
butions may  have  been  made  for  the  joint  benefit  of  both  parents. 
The  claimants,  however  are  willing  to  have  the  entire  amount 
awarded  to  the  father,  who  was  the  head  of  the  family ;  and  to  rely 
upon  having  the  case  reopened  for  further  hearing  if  the  father 
should  die  during  the  period  of  compensation,  leaving  the  mother 
surviving.  *  *  *  In  our  opinion  the  present  award  is  not  in 
compliance  with  the  statute.  If  it  is  to  be  made  to  both  parents, 

32.  Perry  v.  Indus.  Ace.  Comm.,  177  Cal.  706,  169  Pac.   353,  1  W.  C. 
L.  J.   474,   16  N.  C.  C.    A.  83. 

33.  In  re   Osterbrink,  229  Mass.  407.  118  N.   E.   657,  1  W.  C.   L'.    J. 
814,  16  N.   C.    C.  A.  148. 

34.  Fleming  v.  Roburite  Co.,  Ltd.,  (1917),   W.   C.   &  Ina.  Rep.   82,  16 
N.  C.   C.  A.  156. 

35.  People's  Hdw.  Co.  v.  Croke,  (Ind.  App.),  118  N.  E.  314,  16  N.  C. 
C.  A.  179;   Riggs  v.  Lehigh  Portland  Cement  Co.,  —  Ind.  App.  — ,  (1921), 
131  N.  E.  231. 

985 


§    388  WORKMEN  '$,  COMPENSATION  LAW 

the  relative  e'xtent  of  their  dependency  individually  must  be 
found."36 

But  under  the  New  York  Act,  it  was  held  that,  for  an  accident 
happening  prior  to  the  amendment  of  1916,  an  award  to  the  par- 
ents jointly  was  proper. 37 

Where  an  award  was  made  to  a  father  for  the  death  of  his  son, 
it  was  contended  that  the  award  should  be  conditioned  upon  the 
fact  that  the  mother  filed  a  waiver  to  any  claim  growing  out  of  the 
same  circumstances.  Overruling  this  contention  the  court  said: 
' '  In  this  contention  we  think  that  the  appellant  has  overlooked  the 
fact  that  the  claim  for  compensation  is  made  in  the  name  of  both 
Albert  and  Augusta  Buhse,  father  and  mother  of  the  decendent, 
and  the  evidence  clearly  discloses  that  such  contributions  as  the  de- 
cendent made  were  made  alike  for  the  benefit  of  his  father  and 
mother.  The  proceedings  negative  the  possibility  of  a  second  claim 
being  made  against  respondent  by  Augusta,  the  mother,  she  being  a 
party  to  the  present  proceedings."38 

Where  separate  awards  were  made  to  a  daughter,  father,  and 
mother,  there  was  no  merit  in  the  contention  that,  since  the  parents 
were  legally  obligated  to  support  the  daughter,  the  award  to  the 
parents  must  include  any  benefit  to  which  she  might  otherwise  be 
entitled,  and  hence  that  an  award  to  her  was  granting  double  com- 
pensation, as  the  daughter  was  dependent  upon  the  son  for  support 
she  was  entitled  to  a  separate  award.39 

Under  the  provisions  of  an  act  allowing  compensation  to  alien  de- 
pendents and  limiting  the  dependents  in  any  foreign  country  to  the 
surviving  wife  and  children,  and  in  the  absence  of  these  to  father, 
mother  or  grandparents,  which  the  deceased  has  supported  for  a 
year  prior  to  the  accident,  an  award  of  25  per  cent  to  each  parent 
was  double  compensation,  a  s  the  statute  contemplated  25  per 

36.  In  re   Pagnoni,  230   Mass.    9,   118  N.   E.   948,  16  N.   C.   C.   A.    187. 

37.  Moran  v.  Rodgers  &  Hagerty,  Inc.,  180  App.  Div.  821,  169  N.  Y.  Supp. 
410,  16  N.  C.  C.    A.  188. 

38.  Buhse  v.  Whitehead  &  Kales  Iron  Works,  194  Mich.  413,  116  N. 
W.  557. 

39.,  Walz  v.  Holbrook,  Cabot  and  Rollins  Corp.,  170  N.  Y.  App.  Div. 
6,  13  N.  C.  C.  A.  464,  155  N.  Y.  S.  703. 

986 


DEPENDENCY.  §    388 

cent  to  both  parents,  and  the  award  to  the  mother  should  be 
stricken  out.40 

The  commission  is  not  required,  under  the  Illinois  Act,  to  ap- 
portion compensation  between  ;i  widow  and  a  child,  where  then- 
is  no  contest  as  to  who  should  receive  the  benefit  of  the  award, 
and  the  widow  is  the  administratrix  of  the  deceased  empl<> 
The  commission  has  fulfilled  its  obligation  upon  making  pay- 
ments to  the  administratrix.  Nor  does  the  commission  have  to 
determine  how  much  or  what  proportion  every  member  of  the 
class  shall  receive.41 

An  award  of  compensation  in  a  lump  sum  by  an  Industrial  Com- 
mission was  sufficient,  and  it  was  not  obliged  to  declare  the  pro- 
portion of  the  award  of  each  of  the  beneficiaries.  Such  distribu- 
tion should  be  made  by  the  court  appointing  the  administratrix.42 

The  Texas  Act,  providing  that  beneficiaries  in  case  of  death  will 
take  by  descent,  means  descent  relating  to  community  property, 
and  not  per  capita,  as  provided  by  law  of  descent  relating  to  sep- 
arate property.48 

Where  an  employee  leaves  a  dependent  mother,  the  entire  award 
should  be  alloted  to  her,  even  though  there  are  brothers  and  sisters 
who  are  not  dependent.44 

A  decree  to  the  father  and  stepmother  jointly,  though  the  step- 
mother was  not  a  dependent,  was  not  prejudicial  to  the  employer, 

40.  Skarpeletzos   v.  Counes   &   Raptis   Corp.,  228   N.     Y.    46,    (1920\ 
126  N.  E.  268,  5  W.   C.  L.    J.    720;    Casello  v.  McCormack,   180  N.   Y. 
App.   Div.   94,  167  N.  Y.   Supp.   564,  16  N.   C.   C.  A.    219;   Skillaris  v. 
United  States  Railroad  Administration,  191  App.  Div.  928,  180  N.  Y.  Supp. 
649,  (Mar.,  1920),  5  W.  C.  L.  J.  724. 

41.  Swift  &  Co.  v.  Indus.  Comm.,  289  111.   132,   123   N.   E.  767,  4  W. 
C.  L.  J.   163;    Wangler  Boiler  &  Sheet  Metal  Works   v.   Indus.   Comm. 
287  111.    118,  122  N.    E.   £66;     Woodcock  v.   Walker,  170  App.     Dir.   4, 
155  N.  Y.  Supp.  702. 

42.  G.  H.  Hammond  v.  Indus.  Comm.,  288  111.  262.  123  N.  E.  384,  4 
W.  C.  L.  J.  176. 

43.  Texas    Employers   Ins.    Assn.    v.     Boudreaux.    Tex.    Civ.    App. 
— ,  (1919),  213  S.  W.  674,  4  W.  C.  L.  J.  561. 

44.  Matecny  v.  Vierling  Steel  Works,  187  111.  App.  448. 

Note:  For  cases  on  double  indemnity  in  case  of  death  see  Em- 
ployers Wilful  Misconduct,  §  287  ante. 

987 


§  389  WORKMEN'S  COMPENSATION  LAW 

where  the  father,  had  the  suit  been  instituted  alone  in  his  name, 
would  have  been  entitled  to  the  full  amount  awarded.45 

Where  deceased  left  a  mother,  one  sister  and  two  brothers  de- 
pendent upon  him  and  to  whom  he  had  given  $30  per  month  from 
his  salary  of  $55,  and  board  at  $18  per  month,  the  commission  in 
apportioning  the  award  said :  "  It  is  apparent  from  this  statement 
of  facts  that  the  mother  and  also  the  sister  and  brothers  were  total- 
ly dependent  upon  the  deceased.  Compensation  is  accordingly 
awarded  to  the  sister  and  two  brothers  15  per  cent,  share  and 
share  alike,  and  to  the  mother  25  per  cent.  This  award  to  the 
sister  and  brothers  of  15  per  cent,  instead  of  30  per  cent,  which 
would  be  authorized  under  section  10  (F)  of  the  law,  is  made  in 
order  that  the  total  amount  of  compensation  paid  to  the  family 
may  not  be  at  a  higher  rate  than  the  contributions  made  by  the 
deceased  to  the  support  of  the  family  during  the  year  preceding 
the  injury.  This  variation  from  the  award  authorized  by  section 
10  (F)  is  made  in  accordance  with  the  provisions  of  section  10 
(J),  which  is  to  the  effect  that  'in  case  there  are  two  or  more 
classes  of  persons  entitled  to  compensation  under  this  seclion, 
and  the  apportionment  of  such  compensation  above  provided  would 
result  in  injustice,  the  commission  may,  in  its  discretion,  modify 
the  apportionment  to  meet  the  requirement  of  the  case.'"46 

§  389.  Deductions. — Under  the  Illinois  Act,  the  amount  of 
compensation  for  the  death  of  a  coal  miner  is  to  be  computed  upon 
his  gross  earnings,  not  upon  the  gross  earnings  less  the  amount 
deducted  by  the  employer  for  union  dues  and  other  matters.47 

Expenses  incurred  by  a  parent  on  account  of  a  deceased  minor 
son  are  pertinent  in  determining  the  fact  of  dependency,  under  the 
Massachusetts  Act,  but  are  irrelevant  in  determining  the  amount 
of  compensation  to  be  paid  after  the  dependency  has  been  estab- 
lished.48 

V 

45.  Milne  v.  Sanders,  —  Tenn.  — ,  228  S.  W.    702. 

46.  In  re  Grady  Murray,  3rd  A.  R.  U.  S.  C.  C.  100. 

47.  Springfield    Coal   Mining   Co.    v.    Indus.    Comm.,    291    111.    408,    126 
N.   E.  133,  5  W.   C.   L.  J.   675. 

48.  Freeman's  Case,   233  Mass.  287,   123  N.    E.   845,    (1919),   4  W.  C. 
L.   J.  498;   Dembinski's  Case,  231  Mass.  261,  3  W.    C.    L.    J.    151,    120 

988 


DEPENDENCY.  §    389 

Compensation   paid   an   injured   employee,   pursuant   to  a  vol- 
untary agreement  with  the  employee  cannot  be  credited,  at  the 
employee's  death,  against  compensation  awarded  a  dependent.49 
Nor  can  moneys  paid  in  excess  of  the  advancements  allowed  by 
statute  for  medical  purposes,  whm  they  are  voluntarily  paid.60 

NYh.'iv  tin-  mother  of  the  deceased  claimed  compensation  under 
the  Michigan  Act,  she  thereby  clothed  the  employer  with  a  right, 
of  action  against  the  wrongdoer,  and  if  he  failed  to  protect  his 
rights  he  cannot  have  deducted  from  the  award  the  sum  received 
by  the  mother  as  result  of  a  suit  brought  under  the  Survival  Act 
by  the  administrator  of  the  deceased.  The  mother's  election  did 
not  release  the  third  person  from  liability  under  the  Survival  Act 
to  the  deceased's  administrator  for  negligent  killing.51 

Under  the  Illinois  Act,  deductions  need  not  be  made  for  ex- 
penses incurred  in  keeping  the  minor  son,  when  determining  de- 
pendency, since  the  parents  are  under  a  legal  obligation  to  sup- 
port him.52 

Under  the  Kansas  Act,  it  is  held  to  the  contrary,  and  dependency 
is  not  established  unless  the  wages  or  contributions  of  the  minor 
exceed  the  cost  of  his  maintenance.53 

"In  an  action  under  the  Workmen's  Compensation  Law  by  the 
parents  of  a  minor  son  to  recover  compensation  for  his  death,  it 
was  shown  that  his  earnings,  which  averaged  $17.45  per  week, 
were  turned  over  in  full  to  his  parents,  and  that  the  parents  were 

p 

N.  E.  856;  Farnsworth  Colliery  Co.,  Ltd.,   v.  Hall,    (1911),  C.  665,  4  B. 
W.  C.  C.  313,  6  N.  C.  C.  A.  243. 

49.  Jackson   v.   Berlin  Const.   Co.,  93  Conn.    155,  105   Atl.   326,  3  W. 
C.  L.  J.  224. 

50.  Crescent  Coal  Co.  v.  Indus.   Comm.,  286  111.    102.  121  N.  E.  171, 
3  W.   C.    L.  J.  240. 

51.  Vereeke  v.  City  of  Grand  Rapids,  203   Mich.  85,  168  N.  W.  1019, 
2  W.  C.  L.  J.  917. 

52.  Metal    Stamping's  Corp.  v.    Indus.  Comm.,  285    III..  528,    121    N. 
E.  258,  3  W.  C.  L.  J.  258;    In  re  Peters,  64   Ind.  App.  — ,  116. N.   E. 
848,  16  N.   C.   C.  A.  183;    Mahoney  v.    Gamble-Desmond   Co.,  90  Conn. 
255,  90  Atl.  1025,  13  N.  C.  C.  A.  315;  In  re  Murphey,  224  Mass.  592,  6  N. 
C.  C.   A.  716,  113  N.  E.   283. 

53.  McGarvie  v.  Frontenac  Coal  Co.,   103  Kan.  586,  175  Pac.  S75,  3 
W.   C.  L.   J.  46. 

989 


§  390  WORKMEN'S  COMPENSATION  LAW 

partially  dependent  upon  such  earnings;  that  he  paid  no  board, 
but  that  the  expense  to  his  parents  for  his  support  was  $5  per 
week.  The  court  held,  that  in  ascertaining  the  average  yearly 
earnings  of  the  minor,  and  fixing  the  degree  of  dependency  of  the 
parents,  the  employer  is  not  entitled  to  a  credit  or  deduction  for 
the  expense  of  the  minor's  board  and  support."54 

Where  a  father's  earnings,  after  making  proper  deductions  for 
the  contributions  of  his  son,  are  sufficient  to  support  his  family, 
a  case  of  dependency  by  the  family  upon  the  son  has  not  been 
established.55 

Insurance  carried  by  the  employer  on  the  life  of  the  employee 
without  expense  to  the  insured,  should  be  allowed  as  a  credit  to 
the  employer  in  making  an  award,  if  it  is  shown  that  such  insur- 
ance has.been  paid  to  the  widow.56 

Upon  the  modification  of  an  original  award  so  as  to  make  it 
include  the  loss  of  both  legs  instead  of  one,  the  employer  is  en- 
titled to  have  credit  given  him  for  payments  made  under  the 
first  award.57 

Salary  paid  as  such  up  to  the  time  of  the  employee's  death,  is 
not  to  be  credited  to  the  employer  and  cannot  be  deducted  from ' 
the  compensation  awarded  where  it  was  voluntarily  paid.58 

§  390.  Evidence. — In  the  matter  of  dependency,  it  is  necessary 
to  establish  by  competent  evidence  that  the  claimants  stood  in 
that  relation  to  the  decedent,  and  statements  of  a  brother  and 
sister  of  deceased,  who  asserted  that  he  sent  money  to  his  family, 
is  not  competent  evidence,  when  there  is  nothing  to  show  that 
they  knew  any  of  the  facts  and  there  are  no  corroborating  cir- 

54.  Slater  v.  Ismert  Hincke  Milling  Co.,  —  Kans.  —  (1920),  189  Pac, 
908,   6   W.   C.   L.   J.   164. 

55.  Moll  v.  City  Bakery,  199  Mich.  670,  165  N.  W.   649,   1   W.   C.    L. 
J.  391,  16  N.    C.    C.  A.    186. 

56.  •  American  Smelting  &  Refining  Co.  v.   Cassil,  —  Neb.  — ,  (1920), 
175  N.  W.  1021,  5  W.  C.  L.  J.  552. 

57.  Saddlemire   v.   Amer.   Bridge   Co.,   --   Conn.  — ,    (1920),   110   Atl. 
63,  6  W.  C.  L.  J.  130. 

58.  Ogden  v.  Indus.  Comrn.,  —  Utah  — ,  (1920),  193  Pac.    857,  7  W. 
C.   L.  J.   249. 

990 


DEPENDENCY.  §    390 

cunistances;  nor  is  a  statement  of  the  ''onii-ei-  in  charge"  as  to 
the  birth  of  the  decedent  and  claim  of  dependency  by  alleged 
parents,  competent  evidence  of  the  existence  of  parents;  a  cer- 
tified copy  of  the  record  being  essential.50 

Voluntary  contributions  of  money  or  support  arc  not  necessa- 
rily evidence  of  dependency  or  of  the  extent  of  dependency.60 

But  the  fact  that  the  contributions  were  voluntarily  given  to- 
wards the  support  of  one  whom  the  deceased  employee  was  not 
legally  obliged  to  maintain,  will  not  deprive  such  recipient  of  tin- 
character  of  dependent.61 

A  statement  from  a  deceased  employee's  brother  that  he  had 
received  from  his  parents  in  Italy  letters  stating  that  the  parents 
were  living  on  remittances  sent  from  America  by  the  brother,  is 
not  evidence  that  the  parents  were  actually  dependent  upon 
these  remittances.  Nor  are  unauthenticated  certificates  of  the 
"Mayor"  and  "the  official"  of  a  town  in  Italy,  stating  thai  the 
parents  were  exclusively  dependent  upon  deceased  for  their  sup- 
port, and  further  stating  that  they  existed  upon  the  fruits  of 
small  jobs  and  owned  their  own  home  and  other  property,  suffi- 
cient to  establish  dependency.62 

Kvidence  that  a  minor  daughter  turned  over  her  wages  to  her 
mother  is  not,  in  the  absence  of  showing  that  the  mother  was  de- 
pendent upon  her,  sufficient  to  support  a  claim  of  dependency 
under  the  New  York  Act.63 

Evidence  that  a  son  in  America  sent  sums  of  money  to  a  father 
in  Italy,  is  not  sufficient  to  establish  dependency,  in  the  absence 
of  a  showing  that  the  father  was  dependent  upon  these  contribu- 
tions64 

59.  Bonnano  v.  Metz  Bros.,  188  App.  Div.  380,  177  N.  Y.  S.  51,  (1919), 
4  W.  C.  L.  J.  427. 

60.  Miller  v.    Riverside  S.   &  C.  Co.,  189  Mich.  360,  155  N.   \V.   462. 

61.  Walz  v.  Holbrook,  C.    &  R.  Corp.,  170  App.  Div.    6,    155  N.    Y. 
Supp.  703. 

62.  Pifumer  v.  Rheinstein  &  Haas,  Inc.,  187  App.  Div.  821,  175  N.   Y. 
S.  848,   (1919),  4  W.    C.   L.   J.  136. 

63.  Frey  v.  McYouRhlin  Bros.,  Inc..  187  App.  Div.  824,  175  N.  Y.  S.  873. 
(1919),  4  W.   C.  L.   J.    133. 

64.  Peabody  Coal  Co.  v.  Indus.   Comra..  287  111.   407,   (1919).   I:'!'    \ 
E.  843,  5  W.  C.  L.  J.  27. 

991 


§  390  WORKMEN'S  COMPENSATION  LAW 

Evidence  that  the  husband  and  wife  are  living  together  at  the 
time  of  the  accident  is  sufficient  to  establish  dependency.65 

Where  a  husband  is  unable  to  support  his  wife,  evidence  that 
she  is  living  apart  from  him  in  accordance  with  an  agreement 
that  she  earn  wages,  is  not  sufficient  to  establish  desertion.66 

A  claim  for  total  dependency  of  a  widow  in  Italy  upon  her 
husband  in  the  United  States,  cannot  be  supported  upon  the  evi- 
dence which  shows  that  the  husband  owned  the  house  that  the 
widow  was  living  in  in  Italy.  If  the  house  was  of  no  value,  this 
fact  should  be  shown  in  evidence.67 

The  commission  may  receive  affidavits  of  the  father  and 
mother  of  the  deceased,  residing  in  Ireland,  and  taken  before  a 
commissioner  of  oaths  of  the  state  of  New  York,  as  bearing  upon 
their  dependency.68 

An  admission  by  a  father  that  the  contributions  of  the  son 
were.not  sufficient  to  pay  his  board  and  clothing  is  damaging  evi- 
dence, but  is  not  conclusive  upon  the  board  when  the  statement 
was  out  of  harmony  with  other  undisputed  evidence.69 

The  question  of  dependency  of  a  mother  upon  a  married  son, 
who  was  living  with  his  wife  at  the  time  of  the  injury,  must  be 
determined  upon  the  facts  as  they  existed  at  the  time  of  the  ac- 
cident, and  testimony  regarding  contributions  before  marriage 
must  be  excluded.70 

A  signed  statement,  given  at  the  "beginning  of  employment  that 
there  was  no  one  depending  upon  the  deceased,  constitutes  noth- 
ing more  than  evidentiary  matter,  the  probative  value  of  which 

65.  Doherty  v.  Grosse  Isle   Tp.,   205    Mich.   592,    (1919),   172    N.     W. 
596,  4  W.    C.  L.   J.    222. 

66.  James  Black  Dry  Goods  Co.  v.   Iowa  Indus.   Comm..  —  Iowa  — . 
173  N.  W.  23,   (1919),  4  W.  C.  L.  J.  379. 

67.  In  re  Derinza,  229  Mass.  435,  118  N.  E.  942,  1  W.  C.  L.  J.   795,  16 
N.  C.  C.  A.  87. 

68.  Moran  v.  Rodgers  and  Hagerty,  Inc.,  180  App.  Div.  821,  168  N.-Y. 
S.   410,   1  W.  C.  L.    J.    694,  17   N.    C.   C.   A.  263. 

69.  State  ex   rel.  Ernest  Fleckenstein   Brg.   Co.   v.   District  Court  of 
Rice  County,  134  Minn     324,  159  N.  W.  755,  16  N.  C.   C.  A.  189. 

70.  Birmingham  v.  Westinghouse,  Elect.  &  Mfg.  Co.,  180  N.  Y.  App. 
Div.  48,  167  N.  Y.  S.  520,  16  N.  C.  C.   A.  189. 

992 


§   35)0 

is  to  be  determiued  by  the   commission,   and   an  actual   finding 
that  there  were  dependents  is  conclusive.71 

Evidence  that  a  son  in  the  United  States  sent  money  to  his 
parents  in  Italy,  without  any  further  testimony  as  to  the  actual 
dependency  of  such  parents  upon  the  son's  contributions,  is  not 
sufficient  to  sustain  a  claim  of  dependency." 

In  a  proceeding  for  compensation  by  an  alien  woman  on  the 
death  of  a  man  whom  she  claimed  was  her  husband,  it  was  held 
that  a  so-called  protocol,  purporting  to  contain  testimony  of  the 
plaintiff  and  her  witnesses  taken  before  a  probate  judge  in  a 
foreign  country,  where  the  alleged  wife  resided,  could  not  be  ad- 
mitted as  a  foreign  affidavit,  and  even  if  it  was  authenticated  as 
a  foreign  affidavit  it  could  not  be  substituted  to  prove,  in  a  (•«-,.,- 
tested  case,  facts  which  can  only  be  shown  by  competent  oral 
evidence  or  legal  depositions,  taken  after  notice  to  the  opp<>~ 
parties.  Therefore,  in  the  absence  of  witnesses  to  testify  to  know- 
ing deceased  in  Austria  and  in  America,  and  who  could  identify 
him  as  the  plaintiff's  husband,  the  evidence  was  insufficient  to 
establish  the  claimant's  right  to  compensation.78 

Where  the  only  testimony,  to  establish  a  claim  of  dependency 
by  an  alien  father,  was  to  the  effect  that  the  deceased  had  requested 
from  his  depository  an  advancement  of  money,  saying  that  h" 
wished  to  send  it  to  his  father,  the  evidence  was  insufficient  to 
establish  a  claim  of  dependency.74 

Testimony  of  a  witness  that  knew  the  deceased  in  Italy  and 
in  the  United  States,  that  the  parents  of  the  deceased  where  de- 
pendent upon  him  and  that  he  sent  them  money  from  the  United 
States  to  the  knowledge  of  the  witness,  for  he.  acting  as  interpreter, 
purchased  money  orders  for  the  deceased,  saw  him  place  the  money 
order  in  an  envelope,  addressed  to  the  father  in  Italy,  and  mail 

71.  Northern  Redwood   Lbr.  Co.  v.  Indus.  Ace.  Comm..   34  <'al     App 
2,  166  Pac.  828,  16  N.  C.  C.  A.  189. 

72.  Poccardi  v.   State   Compensation    Com'r    82    W.    Va.    497.    91 
E.    663,  16  N.  C.  C.  A.   217. 

73.  Lobuzek  v.  American  Car  and  Foundry  Co..  —  Mich.  — ,  161  N.  W. 
139,  14  N.  C.  C.  A.  423. 

74.  Western  Indemnity  Co.  Inc.  v.  Indus.  Ace.  Comm.  of  Cal..  3-".  Cal 
App.  104,  169  Pac.  261.  16  N.  ('.('.  A.  223. 

W.  C.— 63 


§  390  WORKMEN'S  COMPENSATION  LAW 

the  letter,  was  sufficient  to  establish  dependency  of  the  alien  par- 
ents.75 

A  mere  statement  by  the  brother-in-law  of  the  deceased  that 
at  different  times  the  deceased  had  told  him  of  sending  money 
home  to  his  parents,  was  not  suffcient  evidence  nor  competent  evi- 
dence of  the  dependency  of  deceased's  parents;  as  hearsay  testi- 
mony regarding  the  sending  of  money  in  no  way  established  the 
dependency  of  the  deceased's  parents,  nor  did  it  show  that  the 
money  was  not  sent  for  the  purpose  of  discharging  a  debt  the 
deceased  owed  to  his  parents,  or  for  other  purposes.70 

Evidence  that  a  deceased  employee  contributed  to  the  support 
of  his  mother,  and  that  while  not  immediately  dependent  upon  him 
for  support  she  was  likely  to  become  dependent  because  of  advanc- 
ing years,  lack  of  property  and  regular  employment,  it  could  not, 
as  a  matter  of  law,  be  said  that  such  evidence  did  not  tend  to  prove 
a  condition  of  partial  dependency.77 

Where  parties  agree  upon  stated  facts,  and  after  an  objection 
has  been  filed  to  the  claimant's  right  to  compensation,  the  intro- 
duction of  other  evidence  than  the  stipulated  facts  is  not  error, 
when  there  was  no  objection  made  at  the  time.78 

Statements  of  a  deceased  person  of  his  intention  to  marry  the 
mother  of  an  illegitimate  posthumous  child  are  admissible  on  the 
questions  of  dependency,  and  on  the  issue  of  paternity,  as  well  as 
admissions  against  interests,  and  a  claim  of  dependency  may  be 
based  solely  upon  such  declarations.79 

75.  Victor  Chemical  Works  v.  Indus.  Bd.  of  111.,  274  111.  11,  13  N.  C.  C. 

A.  552,  113  N.  E.  173. 

76.  Tirre  v.  Bush  Terminal  Co.,  127  App.  Div.  386,  158  N.  Y.    S.   883, 
12  N.  C.  C.  A.  64. 

77.  Appeal  of  Hotel  Bond  Co..  89  Conn.  143,  93  Atl.  245,  S  N.  C.  C.  A. 
583. 

78.  Vereeke  v.  City  of  Grand  Rapids,  184  Mich.  474,  151  N.  W.  723,  9 
N.  C.  C.  A.  583. 

79.  Lloyd  v.  Powell   Duffryn  Steam    Coal  Co.  Ltd.,  (1914),  A.  C.  733,  7 

B.  W.  C.  C.  330,  9  N.  C.  C.  A.  588. 
Note:    See  Chapter  XIV,  Evidence. 

994 


DKI'KNDKXCY.  §    392 

§  391.  Burden  of  Proof.— Persons  claiming  death  benefits  un- 
der the  Workmen's  Compensation  Act,  are  bound  to  bring  them- 
selves within  the  language  of  the  act.80 

Tlif  Imnlcn  of  proving  the  elements  necessary  to  bring  the 
beneficiary  within  the  provisions  of  the  Ilinois  Act  of  1913,  Sec. 
7,  par.  (b),  as  amended  by  Laws  of  1915,  p.  401,  providing  for 
compensation  to  employees'  parents,  rests  upon  the  claimant.81 

Where  compensation  is  sought  in  favor  of  alien  mm  resident 
p.iivnts.  there  must  be  actual  proof  that  the  parents  are  living, 
when  they  have  not  been  heard  from  or  of  in  seven  years.88 

The  fact  that  a  man  and  woman  lived  together  for  ten  months. 
is  not  sufficient  evidence  of  a  marriage,  and  this  fact  must  be 
proved  by  the  claimant.83 

The  mere  fact  that  a  father  receives  money  from  his  son  and 
expends  it,  is  not  sufficient  evidence  to  discharge  the  burden  of 
proof  of  dependency.84 

§  392.  Guardians — A  guardian  of  a  dependent  minor  child  is 
the  proper  party  to  award  compensation  to  for  the  child 

( 'onipensation  awarded  to  the  infant  children  of  a  deceased  work- 
man may  be  paid  to  his  widow,  when  she  has  been  appointed  their 
general  guardian.86 

80.  Drummond  et  al.  v.  Isbell-Porter  Co.  et  al..  188  App.  Div.  374, 177  N. 
Y.  S.  525,  4  W.  C.  L.  J.  535.  (1919);  Benjamin  F.  Shaw  Co.  v..Palmatory. 

-  Del.  — .  (1919),  105  All.  417,  3  W.  C.  U  J.  424;  In  re  Derinza,  229  Mass. 

435,  118  N.  E.  942,  1  W.  C.  L.  J.  795,  16  N.  C.  C.  A.  87;  In  re  Sponatsk'. 
221  Mass.  526,  108  N.  E.  466,  L.  R.  A.  1916  A,  333;  In  re  Carroll.  64  Ind. 
App.  — .  116  N.  E.  844. 

81.  Peabody  Coal  Co.  v.  Indus.  Comm.,  289  111.  330,  (1919),  124  N.  E. 
603,  5  W.  C.  L.  J.  57;     In  re  Stewart.  —  Ind.  App.  — ,  (1920),  126  N.  E. 
42,  5  W/C.  L.  J.  514;     In  re  Flerro's  Case,  223  Mass.  378,  111  N.  E.  I 

82.  Keystone  Steel  &  Wire  Co.  v.  Indus.  Comm.,  289  111.  587.  (191H). 
124  N.  E.  542,  5  W.  C.  L.  J.  40. 

83.  Fife   Coal  Co.,    Ltd..  v.  Wallace.    (1910),  2  B.   W.  C.  C.  264,   Ct.  of 
Sess. 

84.  Main  Colliery  Co.  v.  Davies.  2  W.  C.  C.  108. 
Note:    See  Chapter  XIV.  Evidence. 

85.  Holmberg's  Case.  231  Mass.  144,  120  N.  E.  353.  2  W .  C.  L.  J.  8»». 
this  subject.    . 

86.  Woodcock  v.  Walker.  170  App.  Div.  4.  155  N.  Y.  Supp.  702. 

995 


§    393  WORKMEN  '&  COMPENSATION  LAW 

Under  the  Kentucky  Act  where  a  minor  is  employed  in  wilful 
violation  of  a  statute,  his  guardian  and  not  the  Industrial  Com- 
mission, has  the  right  to  elect  whether  to  proceed  under  the  act 
or  in  an  action  at  law.87 

§  393.  Dependency  Under  the  Federal  Act. — Dependency  is  a 
question  of  fact  under  the  Federal  Act,  to  be  determined  by  the 
facts  of  each  particular  case.88 

The  amount  contributed  by  deceased  is  not  the  only  criterion 
for  establishing  dependency.  The  equitable  if  not  legal  claim 
of  a  parent  upon  his  child  for  support  makes  it  proper  to  consider 
the  actual  needs  of  the  parent.  ' '  If  that  use  of  the  farm  was  neces- 
sary to  her  support,  then  she  would  be,  at  least  in  part,  dependent 
upon  that,  and  that  dependence  would  be  recognized  by  permitting 
her  to  occupy  the  farm,  as  I  have  stated.  *  *  *  She  had  the  right, 
so  far  as  the  construction  of  this  statute  is  concerned,  to  keep  that 
money  at  interest,  depend  upon  the  income  from  it,  and  treat 
herself  as  dependent  upon  her  sons  for  whatever  might  be  necessary 
for  her  support  over  and  above  that  income.  *  *  *  There  is  a  state- 
ment here  that  if  the  income  of  the  relative  claiming  to  be  depend- 
ent is  less  than  $500.00  per  year,  that  is  to  be  regarded  as  making 
him  or  her  dependent.  *  *  *  In  the  opinion  of  the  court,  it  depends 
upon  the  circumstances  of  each  case.  The  mother  is  entitled  to 
support  according  to  the  style  in  which  she  has  been  living.  If 
that  has  been  humble  and  inexpensive,  the  amount  necessary  to 
provide  for  her  would  necessarily  be  less  than  if  she  had  been 
living  in  a  more  expensive  style.  The  policy  of  the  Government  is 
not  to  reduce  the  surviving  relatives  of  the  soldier  who  had  lost 
his  life  in  the  service  down  to  the  lowest  standard  of  life,  but  is 
to  construe  the  dependent  clause,  so  far  as  the  obligation  of  the 
statute  is  concerned,  according  to  the  mode  in  which  the  widow 
has  been  living.  *  *  *  It  is  for  you  to  determine  according  to  the 

87.  Frey's  Guardian  v.  Gamble  Bros.,  —  Ky.  App.  — ,  1920,  221  S.  W. 
870,  6  W.  C.  L.  J.  171. 

88.  In  re  claim  of  Theodore  Rock,  Op.  Sol.  Dep.  C.  &  L.   573. 
996 


DEPENDENCY.  §   393 

testimony  whether  she  was  adequately  provided  for.  and  in  deter- 
mining that  you  will  look  to  what  is  necessary  for  her  support."*0 

Xor  will -it  suffice  to  know  the  age,  circumstance,  position  in  life, 
and  the  earning  capacity  of  the  parent,  but  it  must  appear  that 
the  parent  did  in  fact  depend  upon  the  deceased.91 

So  where  deceased  left  a  mother  to  whom  he  had  contributed 
$100.00  in  two  and  one  half  years  prior  to  his  death,  it  was  held 
that  dependency  was  established.62  The  same  ruling  was  made 
where  the  contributions  amounted  to  $125.00  during  the  year 
prior  to  deceased's  death,  although  the  father  owned  real  estate 
and  had  an  income  of  $1,200.0003 

A  mother  living  in  Ireland,  who  had  three  other  sons  and  was 
a  pensioner  of  the  British  Government,  received  small  sums  of 
money  about  May  and  Christmas  of  each  year  from  the  deceased. 
I'pon  this  state  of  facts  it  was  held  that  she  was  not  a  dependent 
upon  deceased,  who  had  left  a  widow.94 

Where  a  single  man  contributed  large  sums  of  money  to  his 
parents,  who  had  five  younger  children  to  raise,  it  was  held  that 
dependency  was  established.03 

A  grandmother  of  deceased,  being  old  and  destitute,  was  held 
to  be  a  dependent,  even  though  the  deceased  had  never  contributed 
to  her  support.96 

A  promise  of  a  youth  to  contribute  to  his  parents,  upon  whose 
farm  he  had  labored  until  entering  the  Government's  employ,  was 
held  to  establish  dependency.07 

90.  United  State  v.  Purdy,  38  Fed.  902. 

91.  In  re  Claim  of  Brauch,  Op.  of  Sol.  Dep.  C.  &  L.   (1915),  576;  In  re 
John  F.  Murphy,  2nd  A.  R.  U.  S.  C.  C.  76;  In  re  Horace  A.  Pelletier,  2nd 
A.  R.  U.  S.  C.  C.  76;    In  re  Chas.  A.  Borrineau,  2nd  A.  R.  U.  S.  C.  C.  77. 

92.  In  re  Claim  of  Lcvi.Belgrave,  Op.  Sol.  Dep.  C.  A  L.   (1915),  580. 

93.  In  re  Leon  Esselman,  (1915),  Op.  Sol.  Dep.  C.  ft  L.  581. 

94.  In  re  Claim  of  Frank  Duffy.  Op.  Sol.  Dep.  C.  ft  L.   (1915),  594. 

95.  In  re  Claim  of  Jack  Scott,  Op.  Sol.  Dep.  C.  &.  L.   (1915),  595. 

96.  Claim  of  Wm.  F.  Munn,  Op.  Sol.  Dep.  C.  ft  L.    (1915),  597;   In  re 
Claim  of  Juan  Enciaa,  Op.  Sol.  Dep.  C.  ft  L.  (1916),  601. 

97.  In  re  Claim  of  Robert  Harris.  Op.  Sol.  Dep.  C.  ft  L.    (1915),  598. 

997 


§  393  WORKMEN'S  COMPENSATION  LAW 

Where  the  parents'  age,  physical  condition  and  circumstances 
in  general  did  not  establish  dependency,  the  mere  fact  that  deceas- 
ed contributed  to  them  would  not  make  them  dependent.98 

Where  a  son,  18  years  of  age,  living  apart  from  his  mother,  did 
not  contribute  to  her  support,  it  was  held  that  dependency  was 
not  shown." 

While  the  Federal  Act  provides  that  35  per  cent  shall  be  paid 
to  a  widower,  who  is  totally  dependent  upon  deceased  at  the  time 
of  his  death,  and  makes  no  provision  for  partial  dependency,  the 
commission  in  its  discretion  may  award  compensation  proportion- 
ately to  the  extent  of  dependency.1 

Where  the  decedent  left  a  woman  with  whom  he  had  cohabited 
after  abandoning  his  wife,  it  was  held  that  she  was  not  a  dependent 
although  her  son,  by  this  putative  father,  was  entitled  to  compen- 
sation.2 

But  where  the  deserted  wife  remarried  and  deceased  contracted 
a  common  law  marriage  with  another  it  was  held  that  his  common 
law  wife  was  entitled  to  compensation.3 

Where  a  stepson  contributed  to  a  stepmother,  because  she  was 
unable  to  meet  all  her  own  expenses  because  of  sickness,  an  award 
was  made  for  one  year,  requiring  the  claimant  to  show  at  the  end 
of  the  year  whether  or  not  dependency  had  terminated.4 

A  stepchild  supported  by  his  stepfather  is  a  dependent,  but 
this  dependency  ceases  when  the  child's  natural  father,  who  had 
been  divorced  from  the  mother,  assumes  the  obligation  of  support.5 

One  employed  at  two  different  occupations  is  entitled  to  have 
compensation  based  upon  his  total  earnings  from  both  employ- 
ments.0 

98.  In  re  Claim  of  Win.  Rees,  Op  Sol.  Dep.   C.  &  L.    (1915),  599. 

99.  In  re  Claim  of  Chas.  Jones,  Op.  Sol.  Dep.  C.  &  L.    (1915),  602. 

1.  In  re  Ella  C.  Lloyd,  3rd  A.  R.  U.  S.  C.  C.  103. 

2.  In  re  George  Young,  3rd  A.  R.  U.  S.  C.  C.  103. 

3.  In  re  Gus  Green,  3rd  A.  R.  U.  S.  C.  C.  185. 

4.  In  re  Frederick  C.  Neilson,  3rd  A.  R.  U.  S.  C.  C.  102. 

5.  In  re  John  David  Anderson,  3rd  A.  R.  U.  S.  C.  C.  97. 

6.  In  re  Wm.  H.  Minnick,  3rd  A.  R.  U.  S.  C.  C.  100. 
998 


m.n.M'i  \<  r, 

A  daughter  over  eighteen  years  oi'  atre  is  not  dependent  merely 
because  she  is  obligated  to  pay  a  debt  that  the  father  has  pronii-.  I 
to  pay,  for  the  compensation  act  does  not  aim  to  pay  the  debts  nf 
deceased  persons.7 

Dependency  is  to  be  determined  as  of  the  date  of  the  accident. 
and  where  a  father  was  dependent  at  that  time,  it  is  imniat^r'-ai 
that  subsequent  to  that  time  others  have  come  to  Ins  relief." 

§  394.  Adoption  Under  the  Federal  Act.— Under  the  Federal 
Act  a  child  must  have  been  legally  adopted  before  the  foster 
parent  is  entitled  to  compensation  as  his  dependent." 

"Adoption,  like  marriage,  is  a  civil  contract,  and.  as  a  general 
rule,  following  the  opinion  in  the  William  A.  Brinkley  case  under 
this  act,  where  there  are  no  circumstances  which  may  raise  a  doubt 
of  the  relationship,  where  it  appears  that  the  deceased  has  lived 
with  and  supported  a  woman  who  claims  to  be,  and  was  claimed 
by  the  deceased  to  have  been  the  mother  by  adoption  of  such  deceas- 
ed, and  where  the  reporting  officer,  as  in  this  case,  states  that 
such  relationship  existed,  it  may  safely  be  assumed  that  the  rein 
tionship  is  established.  Upon  the  question  of  proving  dependence 
of  the  parent  upon  the  deceased  the  opinion  in  the  Brinkley  case 
may  again  safely  be  followed,  to  the  effect  that  a  statement  by 
the  claimant  is  sufficient  to  establish  such  dependency.  In  this 
OUH  elaimant  states  that  she  necessarily  depended  upon  the  de- 
ceased, customarily  receiving  $6  weekly  out  of  his  salarly  of  $1.7."» 
a  day."10 

An  adopted  child  is  entitled  to  the  benefits  of  the  Act.11 

§  395.  To  Whom  Compensation  of  Children  With  a  Surviving 
Parent  is  Paid. — Where  the  deceased  leaves  no  parent  or  widow. 

7.  In  re  Melvin  B.  Murpby.  3rd  A.  R.  U.  S.  C.  C.  101. 

8.  In  re  Arthur  Rogers.  3rd  A.  R.  U.  8.  C.  C.  1"2. 

9.  In  re  claim  of  Charles  Perkins,  Op.  Sol.  Dep.  C.  6  L.    (1915).  57f; 
In  re  Claim  of  Juan  Rodriguez,  Op.  Sol..  Dep.  C.  A  L.  (1912).  551. 

10.  In  re  claim  of  Huff,  Op.  Sol.  Dep.  C.  &  L.    (1915).  567. 

11.  In  re  claim  of  Asenclen  Estorga.  Op.  Sol.  Dep.  C.  ft  L.  (1915),  568. 

999 


§  396  WORKMEN'S  COMPENSATION  LAW 

but  leaves  a  child  entitled  to  compensation,  and  the  acting  Spanish 
Consul  files  an  affidavit  of  claim  on  behalf  of  such  child,  such 
counsul  will  be  deemed  to  be  acting  in  loco  parentis,  and  his 
affidavit  as  the  affidavit  of  the  child.12 

"Where  the  widow  of  the  deceased  has  been  awarded  compensation 
in  her  own  behalf  and  in  behalf  of  their  child,  and  the  widow  dies, 
leaving  the  care  of  the  child  to  a  grandmother,  the  remainder  of 
the  year's  compensation  may  be  paid  to  such  maternal  grandmother 
for  the  use  of  the  child.13 

§  396.  Illegitimate  Children. — "Notwithstanding,  then,  the 
generally  accepted  view,  and  the  numerous  decisions,  in  support 
of  it,  referred  to  at  the  outset,  it  is  believed  that  the  Secretary  would 
be  amply  justified  in  holding  that  the  children  of  a  deceased  em- 
ployee, whether  legitimate  or  illegitimate,  at  least  if  there  is  no 
reason  to  question  the  relationship,  are  entitled  to  the  benefits 
of  the  compensation  act.  This  would  be  no  more  than  giving 
to  the  word  'child'  its  natural  import.  It  would  likewise  give 
effect  to  the  tendency  noticable  in  modern  legislation,  toward 
recognizing  in  illegitimates  the  same  claims  to  parental  care  and 
support  that  belong,  by  natural  right,  to  the  young  of  any  species. 
It  would  be  sustained,  moreover,  by  those  authorities  above  dted, 
few  in  number  but  none  the  less  persuasive,  which  announce  what 
seems  to  be  the  more  rational  doctrine;  and  it  would  follow  a 
principle  of  public  policy  which  does  not  depend  for  its  sanction 
upon  the  infliction  of  vicarious  punishment  on  the  innocent  anrl 
the  helpless.  On  the  other  hand,  to  hold,  as  many  courts  have 
done,  that  the  use  of  the  word  'child'  in  a  statute,  without  any 
qualification  indicating  a  restricted  sense,  always  implies  the  issue 
of  lawful  wedlock,  because  in  generations  past  the  law  regarded 
a  bastard  as  nullius  filins  and  heir  to  no  one,  is  to  adhere  to  a  rule 
long  after  the  reason  for  it  has  ceased  to  have  point.  Such  an 
adherence  to  mere  technicality,  based  on  a  legal  fiction  no  longer 
operative,  would  be  still  less  reasonable  when  dealing  with  a  statute 
which,  like  the  compensation  act,  is  intended  for  a  beneficial 

12.  In  re  claim  of  J.  G.  Redondo,  Op.  Sol.  Dep.  C.  &  L.   (1915),  563. 

13.  In  re  claim  of  Jefferson,  Op.   Sol.   Dep.  C.  &  L.    (1915),  564. 
1000 


purpose  and  is  c.\prex>|v  doiu'iied  to  relieve  ordinary  laborers  and 
those  (Impendent  on  them  of  the  necessity  of  bearing  the  whole 
I'urdfii  resulting  1'roin  tin-  inevitable  accidents  incident  to  the  in- 
dustry in  which  they  are  employed.  Without  saying  of  Con<; 
what  the  court  in  Connecticut  said  of  the  legislature'of  that  State, 
that  it  is  'a  body  made  up  generally  of  plain  men,'  it  can  be  said 
that,  in  passing  the  compensation  act,  'they  made  laws  for  plain 
men;'  and  it  is  at  least  fair  to  presume  that  they  used  the  terms 
'child'  and  'children'  in  the  statute  in  question  'in  their  common, 
popular  signification,  rather  than  with  reference  to  any  legal  or 
technical  sens.-.'  and  that  they  Mi-id,  as  little  reference  to  the 
technical  meaning  of  words  in  the  English  common  law  as  they 
had  to  the  English  law  of  inheritance.'  The  compensation  ad 
does  not  in  any  way  touch  the  matter  of  inheritance.  In  m\ 
opinion,  therefore,  for  the  reasons  given,  and  on  the  strength  of 
some  of  the  authorities  cited,  the  word  'child'  or  'children,'  \vnh- 
in  the  meaning  of  the  compensation  act,  is  not  restricted  to  child 
or  children  born  in  wedlock,  but  includes  illegitimate  nfTsprin<_' 
;t>*  well.  It  is  accordingly  recommended  that  the  claim  of  Edgar 
.McDonald  Harding,  the  illegitimate  child  of  James  F.  Harding, 
deceased,  be  allowed."14 

§  397.  Who  is  the  Widow  of  an  Employee. — The  civil  code  <>F 
Panama  does  not  make  any  provision  for  recognition  of  a  common- 
law  marriage,  and  a  person  depending  upon  the  validity  of  n 
common-law  marriage,  performed  in  Panama,  for  the  establishment 
of  a  claim  of  dependency  must  necessarily  fail.'-'1 

A  woman  who  lived  in  illicit  relations  with  a  man  in  Marhad  >s. 
and  bore  three  illegitimate  children,  is  not  a  dependent.18 

A  woman  divorced  from  an  employee  and  given  custody  of  the 
children  is  not  a  dependent,  but  may  receive  compensation  a> 
guardian  of  the  children.17 

A  woman  who  has  been  divorced  from  her  husband,  is  no!  his 
widow  after  his  death.18 

14.  In  re  claim  of  J.   Harding.  Op.   Sol.  C.  *  L.    <19K. ).  553. 

15.  In  re  claim  of  Stanely  Howell.  Op.  Sol.  Dep.  C.  A  L.   (1915).  549. 

16.  In  re  claim  of  Fitz  Ogard.  Op.  Sol.  Dep.  C.  &.  L.    (1915),  : 

17.  In  re  claim  of  Edward  Niemeier.  Op.  Sol.  Dep.   C.   A  L.    (1915>. 
551. 

18.  Op.  Atty.  Gen..  :?"  Am.  A:  K.  K.m-y.  L.  521. 

1001 


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